Bernard Edelman: La production juridique du réel

»It is well-documented that the philosophical justification of copyright is premised on the idea of the romantic author, the sole suffering genius sitting in isolation and producing works of genius. The first serious challenge to the idea of the romantic author emerged with the invention of photography. Bernard Edelman states that "the eruption of the modern techniques of the reproduction of the real - photographic apparatuses, cameras - surprises the law in the quietude of its categories." Initially the law was not ready for the challenge that would be posed to it by this new technology. Faced with the question of whether a photograph could be considered on the same plane as a painting, the initial response of the courts was in the negative. For French law, the crucial question was whether or not the mechanical product could be said to have anything of the soul in it at all. An authored work (it was argued) is imbued with something of the human soul, but a machine-produced work is completely soulless. 18. Ibid. Yet, this soulless craft had at the same time also become an important economic activity, with thousands in France making a living through photography and photographic technologies. France itself was exporting photographic images, and demands were soon made for the protection of these images, predicating that "the soulless photographer will be set up as an artist and the filmmaker as a creator since the relations of production will demand it".« (Lawrence Liang)

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Brion Gysin: Keine Photos

Im Winter 1951/1952 versicherte mir ein französischer Lehrer der Nomadenschule in der süd- algerischen Wüste, der sich mit den Tuaregs in die Sahara aufmachte, daß er, selbst mit Foto- grafien als Beweis, erhebliche Mühe hatte, seinen Schülern eine Darstellung Frankreichs nahe- zubringen. "Oui, Oui, Frankreich ist ein schöner Garten, ein unermeßlich großer Garten", pflichteten sie ihm ohne weiteres bei, fügten dann aber pfiffig hinzu: "Ja, und zwischen den Gärten, was ist da? Wüsten, stimmts?" Bevor der Lehrer ihnen "Unsere Vorfahren, die Gallier" beibrachte, hätte er besser daran getan, ihnen zu erklären, wie man eine Fotografie liest. ...

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Bruce Sterling: Return to the Rue Jules Verne

These people are not my spiritual ancestors. I know my real spiritual ancestors -- they were the Futurians and the Hydra Club. But although these people are a century and a half gone, and further distanced by language, culture and a mighty ocean, something about them -- what they did, what they felt, what they were -- takes me by the throat.

It won't let go. My first Catscan column, "Midnight on the Rue Jules Verne," made much ado of this milieu, and of one of its members, Felix Tournachon (1820-1910). Tournachon, when known at all today, is best-known as "Nadar," a pseudonym he first adopted for his Parisian newspaper work in the 1840s. Nadar was a close friend of the young Jules Verne, and he helped inspire Verne's first blockbuster period techno-thriller, FIVE WEEKS IN A BALLOON.

Nadar and Verne were contemporaries, both of them emigres to Paris with artistic ambitions, a taste for hard work, and a pronounced Bohemian bent. Nadar and Verne further shared an intense interest in geography, mapping, and aviation. Verne's influence on Nadar was slim, but Nadar impressed Verne mightily. Nadar even featured as the hero of one of Verne's best-known novels, FROM THE EARTH TO THE MOON, as the thinly anagrammed "Michael Ardan."

Thanks to the efforts of my good friend Richard Dorsett (a rare book dealer by trade) I have come into possession of a book called simply NADAR, a collection of 359 of Monsieur Tournachon's pioneering nineteenth-century photographs, assembled in 1976 by Nigel Gosling for Alfred A Knopf. I knew that Nadar had been a photographer, among his other pursuits as an aeronaut, journalist, caricaturist, author, man-about-Paris, and sometime inspiration for a prototypical science-fiction writer. But I never realized that Nadar was *this good!*

Nadar's photographic record of his Parisian contemporaries is the most potent and compelling act of social documentation that I've ever seen.

Nadar, and his studio staff, photographed nineteenth- century Parisians by the hundreds, over many decades, first as a hobby, and later as as a highly successful commercial venture. But Nadar had a very special eye for the personalities of his friends -- the notables of Paris, the literati, musicians, poets, critics, and political radicals.

These are the people who invented "la vie de Boheme." They invented the lifestyle of the urban middle-class dropout art-gypsy. They invented its terminology and its tactics. They brought us the "succes de scandale," the now time-honored tactic of shocking one's audience all the way to the bank. And the "succes d'estime," the edgy and hazardous life of the critics' darling. The doctrine of art for art's sake was theirs too (thank you, Theophile Gautier). And the ever-helpful notion of *epater les bourgeoisie,* an act of consummately modern rebellion which is nevertheless impossible without a bourgeoisie to epater, an act which the bourgeoisie itself has lavishly financed for decades in our culture's premiere example of Aldissian enantiodromia -- the transformation of things into their opposites.

The Paris Bohemians were the first genuine industrial-scale counterculture. This was the culture that created Jules Verne. It deserves a great deal of the credit or blame for origination of the genres of horror, fantasy, and science fiction. It has a legitimate claim on our attention and our loyalties.

Jules Verne enjoys a minor role in this book of Nadar's photographs. Verne is on page 230.

One good look at Verne's perceptive portrait by Nadar is enough to make you understand why Jules became an Amiens city councilman, rather than drinking himself to death or dying of syphilis in approved period Bohemian fashion. Verne was a science fiction writer, and a great one. Anyone reading SF EYE possesses big juicy chunks of Verne's memetics, whether you know it or not. But unlike many of Nadar's other friends -- people such as Proudhon (page 171) and Bakunin ( page 175) and Journet (page 127) -- Jules Verne was not a driven maniac. Jules Verne was clearly quite a nice guy. He projects an air of well-nigh Asimovian polymathic jollity. He's having a good time at the Nadar studio; he's had to visit his barber, and he's required to sit still quite a while in a stiff new suit, but you can tell that Verne trusts the man behind the camera, and that he's cherishing a sense of humor about this experience.

This is not a tormented soul, not a man to batter himself to death against brick walls. Jules Verne has the look of a man who has hit four or five brick walls in his past, and then bought a map and a compass and paid some sustained attention to them. He looks like someone you could trust with your car keys.

The perfect complement to Nadar's photography is Jerrold Seigel's *BOHEMIAN PARIS: Culture, Politics, and the Boundaries of Bourgeois Life 1830-1930* (published in 1986). Almost every individual mentioned in Professor Seigel's book had a portrait taken by Nadar. Seigel's is a fine book which I have read several times; I consider it the single most useful book I have ever seen for denizens of a counterculture.

Professor Seigel's book has quite a bit to say about Nadar and his circle, and about the theory and practice of Bohemianism generally. Professor Seigel's book is especially useful for its thumbnail summary of what might be called the Ten Warning Signs of Bohemianism. According to Seigel, these are:

1. Odd dress. 2. Long hair. 3. Living for the moment. 4. Sexual freedom. 5. Having no stable residence. 6. Radical political enthusiasms. 7. Drink. 8. Drugs. 9. Irregular work patterns. 10. Addiction to nightlife.

As Seigel eloquently demonstrates, these are old qualities. They often seem to be novel and faddish, and are often denounced as horrid, unprecedented and aberrant, but that's because, for some bizarre and poorly explored reason, conventional people are simply unable to pay serious and sustained attention to this kind of behavior. Through some unacknowledged but obviously potent mechanism, industrial society has silently agreed that vast demographic segments of its population will be allowed to live in just this way, blatantly manifesting these highly objectionable attitudes. And yet this activity will never be officially recognized -- it simply isn't "serious." There exists a societal denial- mechanism here, a kind of schism or filter or screen that, to my eye at least, is one of the most intriguing qualities that our society possesses.

In reality, these Ten Warning Signs are every bit as old as industrial society. Slackers, punks, hippies, beatniks, hepcats, Dead End kids, flappers, jazz babies, fin-de-siecle aesthetes, pre-Raphaelites, Bohemians -- this stuff is *old.* People were living a vividly countercultural life in Bohemian Paris when the house in which I'm writing these words was a stomping ground for enormous herds of bison.

Two qualities about Bohemian Paris strike me very powerfully. First, the very aggressive, expansive and ambitious nature of this counterculture. With a few exceptions, the denizens of Bohemian Paris, though small in number, were not people hiding their light under a bushel. Some of them were obscure, and deservedly so, but there was nothing deliberately hermetic about them; much of their lives took place in very public arenas such as cafes, cabarets and theatres. They feuded loudly in the newspapers and journals, and to whatever extent they could, they deliberately manipulated critics, maitresses de salon and other public tastemakers. They bent every effort to make themselves public figures, and if they achieved fame they used it, to radical ends. Many of them declared themselves ready to take to the streets and literally seize power from the authorities. And thanks to the convulsive nature of 19th-century French politics, many of them actually had the opportunity to try this.

The second remarkable quality about the vie de boheme was its high lethality. This was an era of high death- rates generally, but "living on the edge" before Pasteur was a shockingly risky enterprise. Promiscuous sex was particularly deadly. Bohemia's foremost publicity-man, Henri Murger, died at thirty-eight, complaining weakly of the rotting stench in his room, so far gone from syphilitic paresis that he didn't realize that the stench came from his own flesh. Bohemia's most gifted poet, Charles Baudelaire, was rendered mute by paresis before succumbing at 46. Jules de Goncourt, art critic, journalist, novelist, and diarist succumbed to syphilitic dementia at 40. And then there was the White Plague, tuberculosis, reaping Rachel the great tragedienne as well as the fictional "Mimi," the tragic soubrette of Puccini's opera La Boheme, which was based on the Murger stories, themselves based firmly on Murger's daily life.

If Jerrold Seigel's BOHEMIAN PARIS has a hero, it's Henri Murger, also known as "Henry Murger," who was the first to fictionally treat the Vie de Boheme -- in a series of stories for a radical Paris newspaper marvellously titled *Le Corsaire-Satan.* Nadar also wrote for *Le Corsaire-Satan,* and Nadar photographed Murger in 1854. Murger appears on page 53 as a balding, pop-eyed, bearded and much put-upon chap dressed entirely in black. Besides the syphilis that eventually killed him, Murger also suffered from an odd disease known as purpura which turned his skin quite purple "every week at a regular day and hour." The impact of Nadar's sympathetic portrait is, if anything, intensified by the fact that the collodion surface of the photographic plate has cracked along the bottom, trapping the doomed Murger in a spiderweb of decay.

Murger founded a Bohemian club called the Water- Drinkers. Jules Verne had his own circle, the Eleven Without Women. Victor Hugo led the Cenacle group, and Hugo's disciple Theophile Gautier, a great wellspring of Bohemian attitude, led a successor group called the Petite Cenacle. The Goncourt brothers founded the Magny circle and attended the salon of Princess Mathilde Bonaparte, the premiere aristo bluestocking of the Second Empire. Baudelaire, Gautier and a vicious satirist named Alphonse Karr started the Club des Hashischiens, dabbling in opium and hash in the 1850s.

Groups, clubs, salons and movements were the basic infrastructure of Bohemia. The bonds of counterculture were highly informal, highly personal, highly tribal. It was a tightly-knit society in which personality loomed large. It was almost possible to make an entire career merely through prolonged and determined hanging-out.

Nadar manifested a positive genius for this sort of activity. In his early years in the 1840s, Nadar oscillated between the literary circles of Murger and Baudelaire. But by 1865, Nadar boasted, probably quite accurately, that he knew 10,000 Parisians personally. Nadar possessed enormous personal charisma; except for his own kin, he apparently never made an enemy, and everyone who ever met him remembered him very well.

Nadar began his Parisian career as a newspaper caricaturist. His caricatures, collected in a whopping tome called NADAR DESSINS ET ECRITS (Paris 1979) show a certain inky liveliness and keen eye for the ludicrous, but he was no Daumier. His career in journalism was highly unstable. Most of the magazines Nadar wrote and cartooned for either collapsed in short order from public disinterest or were shut down by the government for radical sedition. This signally failed to discourage Nadar, however. Around 1850 he hatched a grand scheme to personally document every celebrity in Paris, in a monster project to be called "Pantheon Nadar."

Even with help, it was far beyond his ability to complete this "Pantheon," and the project eventually foundered -- but not before Nadar had met and sketched some 300 prominent literateurs, journalists, critics and tastemakers. He left knowing every last one of them by their first names.

While trying to upgrade the art of caricature to an industrial scale, Nadar, in 1853, stumbled into the dawning world of photography. He originally saw photography as a means of swiftly documenting celebrities for later caricature by hand, but he swiftly realized that he could dump the tiresome ink-work entirely and go straight for real-life portraiture in a glamorous new medium.

Nadar wrote fifteen books, including novels and memoirs, and was a prominent aviation pioneer, but photography proved to be the closest thing he had to a true metier. Though he did patent an artificial lighting system in 1861, Nadar was not a major technical pioneer in photography -- not a Daguerre or a Fox-Talbot. He had contemporary commercial rivals, as well: Antony Adam- Solomon, Pierre Petit, Etienne Cajart, and others.

Nadar's genuine pioneer status lay in his appropriation of this new technology into unexpected contexts. He was the first to take a picture from the air, the first to take a picture underground, the first to take a picture by artificial light.

And he was the first to appropriate this technical innovation and bend it to the purposes of the Bohemian art-world. This was an archetypal case of the Rue Jules Verne finding its own uses for things. Nadar stated his philosophy of photography in 1856, when he rudely sued his own younger brother for sole ownership of the (now thriving) Nadar photographic atelier trade-name.

"The theory of photography can be learnt in an hour and the elements of practicing in a day.... What cannot be learnt is the sense of light, an artistic feeling.... What can be learnt even less is the moral grasp of the subject -- that instant understanding which puts you in touch with the model, helps you to sum him up, guides you to his habits, his ideas and his character and enables you to produce, not an indifferent reproduction, a matter of routine or accident such as any laboratory assistant could achieve, but a really convincing and sympathetic likeness, an intimate portrait."

It's pleasant to see how this rhetoric works. Theory means little, practice less. Successfully shifting the terms of debate from the technical to the artistic robs actual photographic experts of all their cultural authority. In an instant, the technology's originators dwindle into the miserable nerdish status of the "laboratory assistant."

The crux of photography now becomes a matter of innate talent, a question of personal gifts. Inspiration knows no baud rate. As Nadar remarked later: "In photography as in everything else there are people who know how to see and others who don't even know how to look." This is a splendid kind of audacity, the sign of a subculture which is not beleaguered and defensive but confident, alert and aggressively omnivorous.

It's a mark of Nadar's peculiar genius that he was able to devour photography and thrive while digesting it, rather than recoiling in future shock like his contemporary and close friend Baudelaire. In 1859 Baudelaire wrote a long screed against photography, in which he decried its threat to aesthetics and the avante- garde.

"...(I)t is nonetheless obvious that this industry, by invading the territories of art, has become art's most mortal enemy.... If photography is allowed to supplement art in some of its functions, it will soon have supplanted or corrupted it altogether, thanks to the stupidity of the multitude that is its natural ally."

Baudelaire nevertheless posed for Nadar's camera. In fact Baudelaire admired Nadar very much, aptly describing Nadar as an "astounding example of vitality." Baudelaire's photo is on page 67 and Nadar's portrait of the author of FLOWERS OF EVIL is without any doubt the single most remarkable image in the Nadar collection.

Despite the fact that he has stuffed one mitt into an oversized double-breasted coat in Napoleonic fashion, Baudelaire looks shockingly contemporary. It's a face that you could see tomorrow in SPY or SPIN or INTERVIEW, sharp, slightly contemptuous, utterly self-possessed. The photograph is 1855, two years before the police seizure and legal condemnation of FLOWERS OF EVIL.

The Goncourt Brothers said that Baudelaire had "the face of a maniac, a voice that cuts like steel." There is no recorded trace of his voice, but the face Nadar preserved for us is indeed maniacal -- which is to say, the face of someone not from the Goncourts' century, but rather from our own. Baudelaire looked like a maniac because he looks just like one of us.

FLOWERS OF EVIL is probably the greatest literary monument of the Paris Bohemia, a book which after 136 years remains in many ways novel, frightening and unsettling. Today it's not the frank eroticism and deliberate blasphemy which disturb -- although "Les Bijoux," a chop-licking description of Baudelaire's mistress lolling around on a divan naked under her stage jewelry, remains remarkably hot and bothersome.

It's not the period elements that sting, but that vibrant underlying mania. Just test the potency of the following lines, an invocation to Death in "Le Voyage," the last poem in Fleurs du Mal:

"O Death, old captain, it is time! Lift anchor! This land wearies us, o Death, let us set sail! Even though sky and sea are black as ink, Our hearts you know are filled with light!

Pour out your poison to strengthen us! Our brains are so scorched with flame that we want To plunge to the depths of the abyss, what matter if it be Hell or Heaven? -- To the bottom of the Unknown to find something *new!*

For all his pop-star world-weary aesthetic posing -- Nadar describes Baudelaire as favoring excessively flared black jackets, red scarves, pink gloves and shoulder- length curling hair -- Baudelaire clearly *meant* this. He'll immolate himself, run any mad risk to break through consensus reality, to smash the ennui of civilization and all mortal limits in the slim hope of achieving some completely unknown form of ontological novelty. This is a junkie's rhetoric, but in an odd and menacing way quite timeless. It's a declaration one might take to heart today just before eating a double-handful of untested smart-drugs, and it could serve just as well as the rhetoric of some 22nd-century posthuman deliberately tweaking his own genetics. In some profound sense, it does not bode well for humanity that we are capable of producing a work like Fleurs du Mal.

"If rape, poison, the dagger, and arson have not yet embroidered their pleasing designs on the banal canvas of our wretched destinies, it's because (alas!) we lack the courage to act otherwise." Put it this way -- this is not the guy to trust with your car keys.

Immediately after Baudelaire's amazing portrait comes another extremely striking Nadar image. It's a studio nude of Christine Roux, a cafe singer and minor-league courtesan who ran in the Murger circle and was talked out of her clothes by Nadar in 1855. She also features as "Musette" in Murger's *Scenes de la Vie de Boheme,* in which she is the mistress of "Marcel," himself said to be based partially on Nadar. Christine stands in a conventional model's art-posture, weight on one leg, torso slightly twisted, but her face is hidden in the crook of her raised right elbow, rendering her effectively anonymous, a luscious icon for the male gaze.

Murger's fictional treatment of Musette is friendly and tolerant, but more than a little contemptuous. The fictional Musette is the standard hooker with a heart of gold; but Murger's indulgence doesn't hide the fact that the Paris Bohemia was a society that specialized in treating women as hired meat. Here's Nadar himself, a man of wide tolerance, a man of unquestionable psychological insight, describing Baudelaire's favorite mistress, the small-time actress and courtesan Jeanne Duval:

"A tall, almost too tall girl. A negress, or at least a mulatto: whole packets of ricepowder could not bleach the copper of the face, neck and hands. A beautiful creature in fact, of a special beauty which owed nothing to Phidias. A special dish for the ultrarefined palate. Beneath the impetuous luxuriance of her ink-black and curling mane, her eyes, large as soup-plates, seemed blacker still; her nose was small, delicate, the nostrils chiselled with exquisite delicacy; her mouth Egyptian.... the mouth of the Isis of Pompeii, with splendid teeth between prominent and beautifully designed lips. She looked serious, proud, even a bit disdainful. Her figure was long-waisted, graceful and undulating as a snake, and especially remarkable for the exuberant, exceptional development of the breasts. And this abundance, which was not without grace, gave her the look of a branch overloaded with ripe fruit."

Jeanne Duval's sexy as hell. She's a special dish, she's a soup-plate, she's a statue, she's a snake, she's a fruit tree; she's anything but a human being. This is the rhetoric one has to emit in order to treat women the way women were treated in Bohemian Paris. In FLOWERS OF EVIL, Baudelaire gloats over Jeanne Duval with a lipsmacking contempt that is truly painful to witness, declaring her a beast, a tramp, trash, carrion, and then wallowing in her at length. One can't help but conclude that Baudelaire would like Jeanne even better if her head were severed, although that might reduce the ugly satisfaction he takes in blaming her for the existence of his own libido.

Musette, her photo placed rather too aptly on page 69, is a poisoned dish. You have to buy her, and if you catch anything from her, it's as much as your life is worth. There's no birth control to speak of, so you may well end up supporting bastard children or, worse yet, not supporting them. There will be no meeting of minds here; it's true Musette can sing a bit, but to marry her would be an utter disaster, a mesalliance reducing you to a social laughing-stock. This is skin for money, with a nice brain-eating tang of Russian roulette tossed in for spice. And by the way, it's also a mortal sin, which is no small deal in mid-nineteenth century Catholic France.

Are you really going to do this? Are you going to spend the money to buy Musette, and take that dire risk of all that potential misery and hurt, to yourselves and to her and to your parents and to the next generation, and to God Himself and the Savior and all the saints and angels for that matter, merely in order to emptily and temporarily possess the anonymous female body depicted on page 69?

Fuck yes you are. Of course you are. I mean, just *look* at it!

In the all-too-immortal words of the Brothers Goncourt: "Men like ourselves require a woman with little breeding, small education, gay and natural in spirit, to charm or please us as would an agreeable animal to which we might become attached. But if a mistress had a veneer of breeding, or art, or of literature, and wanted to talk on an equal footing with us about our thoughts and our feeling for beauty; if she were ambitious to become the companion of our taste or of the book gestating within us, she would become for us as unbearable as a piano out of tune -- and very soon antipathetic."

Nadar reports his last view of Jeanne Duval in 1870, her graceful undulating exotic tasty carcass propped on crutches from the ravages of syphilis. Musette died in a shipwreck in 1860, at age 25.

Here's Theophile Gautier on page 113. He was an extremely hip and happening guy, Gautier. There's a lot to be learned from him. He looks very much like a bouncer in a biker bar. This beefy dude is the ultrarefined escapist lily-clutching Romantic aesthete who coined the dictum "only what is useless is beautiful" in his *Mademoiselle Maupin,* one of the great indecent books of the nineteenth century. Gautier was a major pioneer of fantasy as a genre, an arty arch-Romantic who wrote about Orientalism and female vampires and mystically revived female mummies and tasty female succubi who jump off the embroidery in ancient tapestries to fuck the brains out of undergraduate XIXth-cent. lit-majors, and yet Nadar's portrait makes it utterly clear that Gautier is a guy who could swiftly kick the shit out of nine men out of ten.

At age nineteen, Gautier led the howling Romantic contingent at the premiere of Victor Hugo's *Hernani* in 1830, the public brawl that marked the end of NeoClassicism as a theatrical doctrine; and you can see from his portrait that Gautier wasn't doing anything so mild as "marking" the end of classicism, he was publicly breaking its back and was proud and happy to do it.

Gautier's table-talk is the best stuff in the famously gossipy *Journals* of the Brothers Goncourt. By the 1860s Gautier had become the most powerful critic in Paris; a man who wrote operas and ballets and plays and short stories and novels and travel books and poetry and about a million crap newspaper columns, and yet he found the time to eat hash and dominate salons and throw monster parties at the house of his common-law wife that had, among other attractions, actual Chinese people in them. Gautier was writing for the government organ *Le Moniteur* as a theatre critic and he was the lion of Mathilde Bonaparte's circle, Mathilde being Napoleon III's cousin and the Second Empire's officially sanctioned token bluestocking liberal. Having reached the height of Bohemian public acceptance Gautier ground out his copy in public and in private he lived in open scandal and bitched about the government every chance he got. The stuff he says is unbelievable, it's a cynical head-trip torrent worthy of Philip K. Dick.

Picture this: it's 1860. Civil War is just breaking out in the USA. Meanwhile, Theophile Gautier's at a literary dinner in the rue Taitbout in a sumptuous drawing-room lined with padded pigeon-blood silk. He's drinking twenty-two-year-old champagne and discussing the immortality of the soul. Gautier addresses a right-wing Catholic. "Listen, Claudin, " he says, "assume the Sun was inhabited. A man five feet tall on Earth would be seven hundred and fifty leagues high on the Sun. That is to say, the soles of your shoes, assuming you wore heels, would be two leagues long, a length equal to to the depth of the ocean at its deepest. Now listen to me, Claudin: and along with your two leagues of boot soles you would possess seventy-five leagues of masculinity in the natural state."

Claudin, shocked, babbles something eminently forgettable.

"You see," Gautier continues suavely, "the immortality of the soul, free will -- it is very pleasant to be concerned with these things before one is twenty-two years old; but afterward such subjects are no longer seemly. One ought then to be concerned to have a mistress who does not get on one's nerves; to have a decent place to live; to have a few passable pictures on the wall. And most of all, to be writing well. That is what is important: sentences that hang together... and a few metaphors. Yes, a few metaphors. They embellish life."

Gautier divided his time between the literary salons of Mathilde Bonaparte and La Paiva. La Paiva was a courtesan, a true grande horizontale, a demimondaine who had battled her way to the top through sheer chilly grit and professional self-abnegation. She scared the hell out of the Brothers Goncourt, who paint her as an aberrant harpy, but Mathilde was jealous of her nonetheless, and complained that the litterateurs made so much of bluestocking demimondaines that the Imperial princess herself felt unlucky not to have been born "a lustful drab."

In the last years of his life -- he died in 1872 -- Gautier took a sinecure as Mathilde's official librarian, something of an apology on her part for not being able to wedge him into the Academy or get him a sinecure post in the Empire's rubber-stamp Senate. Gautier was just that one shade too Bohemian to manage the conventional slate of honors; but he was not quite so Bohemian that he wasn't of real use to Mathilde. Mathilde did not have the direct social power of her cousin's wife, the Empress Eugenie, a woman Mathilde cordially despised; but if Mathilde couldn't have the court painters, the ladies-in-waiting, and the full imperial etiquette, she could nevertheless reign as Queen of Bluestockings over the literary counterculture. Mathilde liked books, she liked painters, she liked music; she was a moderately bright and cultured woman who could follow an intelligent conversation and even lead one sometimes; but she knew how to guard the interests of her family as well. The Goncourts recorded her tantrum as a salon favorite joined the staff of an opposition newspaper.

"He owes everything to me," Mathilde screamed. "And what did I ask in return? I didn't ask him to give up a single conviction. All I asked was that he keep away from those people on the *Temps.*"

The "opposition" established by Mathilde's countercultural noblesse oblige was one of the guises assumed by power itself; to pay off Theophile Gautier was to nourish the serpent to one's bosom in the hope of stroking it to sleep. It was a risky game, but their lives were risky. The cultural Entente Cordiale between the Court and Bohemia didn't have to hold together forever; it only had to hold together long enough. The entire structure of the Empire itself collapsed in 1870, crushed in the Franco-Prussian War.

The street may find its own uses for things -- but Things find their own uses for the street. The Rue Jules Verne is a two-way avenue, a place where monde and undermonde can embrace illicitly and swap infections. While Nadar rose in his balloons to document the city with his cameras, Napoleon III's Parisian prefect, Baron Haussman, demolished and rebuilt the landscape below him. It's thanks to Haussman that we know Paris today as a city of wide, straight, magnificent boulevards -- the Champ d'Elysees is one. For Nadar and his contemporaries the Haussmanization of the city was the truest sign of its modernization. Nadar's photographic studio was located in one of these new streets. He dominated the entire second floor of a new building in the latest taste.

Haussmann's streets were the Rue Jules Verne as a killing ground. Yes they were elegant, yes they aided the flow of traffic, but their true raison d'etre was as a strategic military asset. In 1789, 1830, 1848 the Parisian populace had barricaded their narrow twisting streets and foiled the Army. After Haussmann, Paris would be splayed-out on a lethal command grid where grapeshot could fly on arrow-straight lines through whole city blocks, directly through the insubordinate carcasses of any revolutionary proletariat.

The streets didn't save the regime, though. In 1870 Bismarck's Germans smashed the French armies at Sedan. Paris was blockaded.

In response, Nadar invented airmail.

In 1859, Napoleon III had offered Nadar 50,000 francs to take aerial photographs of the Italian front in his military adventure in Italy; but Nadar was a staunch radical republican and stoutly refused any bloodmoney from the imperial war-machine. The disaster of 1870 was a different matter. As Nadar explained from Paris, via balloon, to *The Times* in London, destroying the repugnant Imperial regime was one thing, and rather understandable; but killing the Parisian populace wholesale was quite another.

Nadar was normally a highly mannered, rather precious prose stylist, rarely using one word when ten elegantly sesquipedalian ones would do; but with his own people at bayonet-point Nadar apparently concluded that this wasn't the time for copping aesthetic attitudes. Things had reached such a point that Nadar's balloons, which he himself regarded mostly as publicity stunts, were in fact a last hope. He had invented, and owned, the last means by which Paris could publicize herself. Under these circumstances, Nadar addressed humanity at large with as much directness, simplicity, and clarity as he could manage. He lacked official backing -- in the blockade of 1870 there was essentially no government left in Paris -- but what he lacked in authority, he made up in simple eloquence, self-starting nerve, and headline-grabbing novelty.

Nadar's balloon corps didn't make much real military difference. Some were shot down; one was blown off to a fjord in Norway. In any case, balloon traffic could not hope to match the enormous military significance of German railroads.

And yet the balloons were there -- and they could fly. After the debacle of Sedan, Paris had no government, damn little food, no mail, no official backing, and victorious enemy guns on all sides -- but anyone in Paris could see Nadar's balloons. There wasn't much to them, really, other than straw and hot air and an attitude, but they were there, and they were flying. They were energetic, they were optimistic, and they made a bold pretense of practicality. People have died cheerfully for less. It was his finest hour.

Nadar outlived everyone in the Pantheon Nadar. His enormous vitality served him well, and he died two weeks short of his ninetieth birthday, in 1910. This man, who showed such preternatural insight into other people, was not devoid of self-knowledge. As early as 1864, he described himself well:

"A superficial intelligence which has touched on too many subjects to have allowed time to explore any in depth.... A dare-devil, always on the lookout for currents to swim against, oblivious of public opinion, irreconcileably opposed to any sign of law and order. A jack-of-all-trades who smiles out of one corner of his mouth and snarls with the other, coarse enough to call things by their real names -- and people too -- never one to miss the chance to talk of rope in the house of the hanged man."

Nadar died eighty-three years ago. We have no real right to claim him -- visionary, aesthete, polemicist, Bohemian, technologist -- as a spiritual ancestor.

But it might be a damned good idea to adopt him.

From SCIENCE FICTION EYE #12. SF Eye, P.O. Box 18539, Asheville NC 28814. $12.50/three issues $20 outside USA
found on Bruce Sterling Site

Charles Baudelaire: On Photography, from The Salon of 1859

A madness, an extraordinary fanaticism took possession
of all these new sun-worshippers.
Baudelaire

Charles Baudelaire, father of modern art criticism, was deeply ambivalent about modernity. Some of his concerns about the creative situation for the artist in a mechanically progressive age are displayed in this commentary on photography from the Salon review of 1859, the year most Baudelaire scholars consider his most brilliant and productive. In the twelve years between the 1846 review and this one, the poet’s contempt for the values of the middle-class establishment and the egalitarian “mob” had deepened. After a brief, disillusioning engagement at the barricades in 1848, the 1851 Bonapartist coup d’état, and the coronation of Napoleon III the next year, whatever hope he might have held for the politics of his era vanished. His alienated modernism gained further assurance in early 1852 from his discovery of Edgar Allan Poe (1809-1849), the American poète maudit whose vision Baudelaire recognized as his own. Poe’s influence can be detected in the 1857 Flowers of Evil, a collection of poems that was immediately banned by the censors of Napoleon III. After a famous trial, six of the poems were judged an offense against public morality, and Baudelaire’s break with establishment culture was complete.
In 1846 Baudelaire had declared his admiration for the beauty of modern dress and manners and sought the painter who would capture it. In 1860 he expanded on these views in an article published in 1863, The Painter of Modern Life. Yet this 1859 commentary on photography, despite the absolute modernity of the medium, expresses scorn for its ubiquity and overwhelming popularity. Apparently putting aside his search for the artist who will represent modern life and his close ties to realists Courbet, Manet, Daumier, and the photographer Nadar, Baudelaire here asserts that “It is useless and tedious to represent what exists, because nothing that exists satisfies me…. I prefer the monsters of my fantasy to what is positively trivial.” Baudelaire’s poem, Correspondences (c.1852-6) [see chapter 12] likewise reduces the Realist aesthetic to irrelevance. Nature becomes an immaterial “forest of symbols,” a poet’s dictionary of subjective associations, metaphorical forms rather than concrete phenomena. The anti-materialist perspective of Correspondences and this commentary on photography will have a formative influence on Symbolist poets and artists in the decades after Baudelaire’s death. Its cultural prestige will reach far into the 20th century to give critical support to nearly every modernist movement from Fauvism and Cubism through Abstract Expressionism.
As you read, note the reasons Baudelaire gives for his attitude toward photography. What does he think of its many admirers, especially the painters? Is he still addressing the bourgeois viewer as he did in the 1845-6 Salon reviews? Who is his intended audience? How do Baudelaire’s observations about the social value of photography compare with the hopes W.H.F. Talbot expresses in the 1841 Pencil of Nature and Walter Benjamin’s views in the 1936 “Work of Art in the Age of Mechanical Reproduction”?

Baudelaire’s Salon of 1859 was first published in the Révue Française, Paris, June 10-July 20, 1859. This selection is from Charles Baudelaire, The Mirror of Art. Jonathan Mayne editor and translator. London: Phaidon Press Limited, 1955.

[…] During this lamentable period, a new industry arose which contributed not a little to confirm stupidity in its faith and to ruin whatever might remain of the di vine in the French mind. The idolatrous mob demanded an ideal worthy of itself and appropriate to its nature – that is perfectly understood. In matters of painting and sculpture, the present-day Credo of the sophisticated, above all in France (and I do not think that anyone at all would dare to state the contrary), is this: “I believe in Nature, and I believe only in Nature (there are good rea sons for that). I believe that Art is, and cannot be other than, the exact reproduction of Nature (a timid and dis sident sect would wish to exclude the more repellent ob jects of nature, such as skeletons or chamber-pots). Thus an industry that could give us a result identical to Nature would be the absolute of Art.” A revengeful God has given ear to the prayers of this multitude. Daguerre was his Messiah. And now the faithful says to himself: “Since photography gives us every guarantee of exactitude that we could desire (they really believe that, the mad fools!), then photography and Art are the same thing:’ From that moment our squalid society rushed, Narcissus to a man, to gaze at its trivial image on a scrap of metal. A mad ness, an extraordinary fanaticism took possession of all these new sun-worshippers. Strange abominations took form. By bringing together a group of male and female clowns, got up like butchers and laundry-maids in a car nival, and by begging these heroes to be so kind as to hold their chance grimaces for the time necessary for the per formance, the operator flattered himself that he was re producing tragic or elegant scenes from ancient history. Some democratic writer ought to have seen here a cheap method of disseminating a loathing for history and for painting among the people, thus committing a double sacrilege and insulting at one and the same time the di­vine art of painting and the noble art of the actor. A little later a thousand hungry eyes were bending over the peepholes of the stereoscope, as though they were the attic-windows of the infinite. The love of pornography, which is no less deep-rooted in the natural heart of man than the love of himself, was not to let slip so fine an opportunity of self-satisfaction. And do not imagine that it was only children on their way back from school who took pleasure in these follies; the world was infatuated with them. I was once present when some friends were discretely concealing some such pictures from a beautiful woman, a woman of high society, not of mine—they were taking upon themselves some feeling of delicacy in her presence; but “No,” she replied. “Give them to me! Nothing is too strong for me.” I swear that I heard that; but who will believe me? “You can see that they are great ladies,” said Alexandre Dumas. “There are some still greater!“ said Cazotte.
As the photographic industry was the refuge of every would-be painter, every painter too ill-endowed or too lazy to complete his studies, this universal infatuation bore not only the mark of a blindness, an imbecility, but had also the air of a vengeance. I do not believe, or at least I do not wish to believe, in the absolute success of such a brutish conspiracy, in which, as in all others, one finds both fools and knaves; but I am convinced that the ill-applied developments of photography, like all other purely material developments of progress, have contrib uted much to the impoverishment of the French artistic genius, which is already so scarce. In vain may our mod ern Fatuity roar, belch forth all the rumbling wind of its rotund stomach, spew out all the undigested sophisms with which recent philosophy has stuffed it from top to bottom; it is nonetheless obvious that this industry, by invading the territories of art, has become art’s most mor tal enemy, and that the confusion of their several func tions prevents any of them from being properly fulfilled. Poetry and progress are like two ambitious men who hate one another with an instinctive hatred, and when they meet upon the same road, one of them has to give place. If photography is allowed to supplement art in some of its functions, it will soon have supplanted or corrupted it altogether, thanks to the stupidity of the multitude which is its natural ally. It is time, then, for it to return to its true duty, which is to be the servant of the sciences and arts— but the very humble servant, like printing or shorthand, which have neither created nor supplemented literature. Let it hasten to enrich the tourist’s album and restore to his eye the precision which his memory may lack; let it adorn the naturalist’s library, and enlarge microscopic animals; let it even provide information to corroborate the astronomer’s hypotheses; in short, let it be the secre tary and clerk of whoever needs an absolute factual exac titude in his profession—up to that point nothing could be better. Let it rescue from oblivion those tumbling ruins, those books, prints and manuscripts which time is devouring, precious things whose form is dissolving and which demand a place in the archives of our memory—— it will be thanked and applauded. But if it be allowed to encroach upon the domain of the impalpable and the imaginary, upon anything whose value depends solely upon the addition of something of a man’s soul, then it will be so much the worse for us!
I know very well that some people will retort, “The disease which you have just been diagnosing is a disease of imbeciles. What man worthy of the name of artist, and what true connoisseur, has ever confused art with industry?” I know it; and yet I will ask them in my turn if they believe in the contagion of good and evil, in the action of the mass on individuals, and in the involuntary, forced obedience of the individual to the mass. It is an incontestable, an irresistible law that the artist should act upon the public, and that the public should react upon the artist; and besides, those terrible witnesses, the facts, are easy to study; the disaster is verifiable. Each day art further diminishes its self-respect by bowing down be fore external reality; each day the painter becomes more and more given to painting not what he dreams but what he sees. Nevertheless it is a happiness to dream, and it used to be a glory to express what one dreamt. But I ask you! does the painter still know this happiness?
Could you find an honest observer to declare that the invasion of photography and the great industrial mad ness of our times have no part at all in this deplorable result? Are we to suppose that a people whose eyes are growing used to considering the results of a material sci ence as though they were the products of the beautiful, will not in the course of time have singularly diminished its faculties of judging and of feeling what are among the most ethereal and immaterial aspects of creation?

Etienne Balibar: My Self and my Own: one and the same?

Irvine Lectures in Critical Theory, The Critical Theory Institute, University of California, Irvine, Wednesday 12 February, 2003

In this lecture, I want to tell two stories concerning words. One is a public story, or better said and more reasonably, it is a fragment of a grand story concerning words which I think we would all agree lie at the heart of the so-called western philosophical culture, the so-called “personal pronouns” I and Me (therefore also the others), and the names self and own. The other is a private one, although it owes everything to the public institutions which have invited me to this country, it is the story of my journey into the English language, or a nice moment in it. And the point where these two stories interfere is a mistake, actually a rather big and naïve mistake. I made it because I was as presumptuous as to imagine that I was advanced enough in my understanding of some idiomatic properties of English, to be able to solve a riddle concerning the reasons why it was precisely in English, in the work of one of the greatest English-writing philosophers of the 17th century, that the relationship of the self and the own structuring the classical theory of “personal identity”, was invented. I made a mistake, I wrote and published (fortunately, in French…) something that is clearly wrong. But you learn from your mistakes, and I will be trying now to give to the presentation of this mistake and what I hope is its correction a form that could be of general interest – which is probably again very presumptuous.

But I should be more specific. Some years ago I had embarked on a project of translation and commentary of the chapter of Locke’s Essay on Human Understanding called “Of Identity and Diversity” (II.27), which is often quoted as the chapter on “personal identity” and constantly referred to in philosophical and anthropological discussions as the standard exposition of the “classical” theory which makes the continuity or the “stream” of consciousness (therefore the intrinsic relationship, or the reciprocity, of consciousness and memory) the “criterion” of personal identity and carries this idea to its extreme consequences, metaphysical, psychological, and social. This is justified by the fact that the presentation of this criterion and the discussion of its implications is really the heart of the chapter, and by the fact that it forms something like an autonomous Essay within the Essay. Rather than deriving from previous developments in the book, it is providing a new foundation or formulating a posteriori a principle that clarifies the intentions of the whole book. This cannot be separated indeed from the fact that this chapter was written separately. It was added in the second edition (1694) to respond to violent critiques from the theologians who claimed that Locke’s conception of the mind, substituting the “empirical” or we would say today phenomenological description of the operations of reflection and the association of ideas to the metaphysical assumptions concerning the substance of the soul, would destroy the moral and religious notion of personal responsibility. And we know that Locke’s reply to these critiques, the so-called consciousness-theory of personal identity (and therefore also responsibility), immediately raised new objections, from Butler and Leibniz to Hume onwards, some more radically empiricist, others trying to resume the substantialist point of view, which until today have kept the philosophers extremely busy.

The reason however why I wanted to translate anew and comment on the text of Locke’s chapter was not directly associated with the argument concerning personal identity, but with an encounter of three orders of interests and concerns, which I still have. One has to do, precisely, with translations and limits to translations, or as we say in French intraduisibles, in this case the change from the French “moi” which was used by Descartes and Pascal to the English “self”, which became through the translation of Locke into French (made under his own guidance) “soi” or “soi-même”. I was working on this for my contribution to the Vocabulaire européen des philosophies, a collective critical and encyclopaedic work which, I hope, will eventually come out this year. My second interest has to do with a classical issue in philosophical anthropology, with obvious political implications: the definition or identification of the “individual” as a Proprietor of his own Person which, again in Locke, but this time in the Second Treatise of Government (§§ 27, 44, etc.), replaces the traditional notion of being master of oneself (dominium sui) or living on one’s own right (sui iuris esse), to become the foundation of a contractual or equalitarian political order, in other terms the key notion of what Macpherson has called “the political theory of possessive individualism”. Finally, my third interest has to do with the genealogy of the modern concept of subjectivity and the concept of the subject itself. I was particularly focusing on the fact that, contrary to what many discussions for and against the primacy of the subject in the last fifty years have assumed, the issues of subjectivity and consciousness are not identical, not only today, because of the influence of psychoanalysis and other theories which insist that the subject is essentially unconscious, but already and perhaps more radically in the classical age, the very moment of the constitution of the metaphysics of subjectivity, as can be demonstrated by the fact that Descartes’ philosophy of the thinking subject has nothing to do either with the term or the notion of consciousness. And, again, it was Locke who appeared to have inaugurated, and actually invented, a conception of individual subjectivity which places it within the realm of consciousness and practically identifies it, as later in Kant, with the possibility of self-consciousness. It happened, then, that all my interests were converging towards the study of Locke, a philosopher whose importance I was not disputing, but of whom I must say I had a very academic and general knowledge.

But there was another reason that pushed me to become interested in the linguistic aspects of Locke’s philosophy, or better said to the importance of Locke’s working with and within language, perhaps with several languages, in the elaboration of his own philosophy, which in turn led me to endeavouring to partially remake the existing translation myself. It was the fact that the original 17th century French translator (Pierre Coste) had discussed himself in a fascinating way the impossible equivalence of certain English and French vocabularies, in particular in the case of three key terms: the English self, which he would propose to “translate” with the neologism “soi” or “soi-même” in order to mark the difference with the meaning of moi or le moi in French metaphysics; the English consciousness, a quasi-neologism in Locke’s text, that he would suggest to translate as con-science at the price of a possible confusion with conscience, which he tried to avoid through a trick, the use of a hyphen in the French spelling of the word; and the English uneasiness, which he would propose to translate as inquiétude (instead of malaise or malêtre), thus giving its linguistic basis to the great theme of “inquiétude” and “Unruhe” in 18th and 19th century literature and philosophy. So I could have the impression that the critical and philological work that I was trying to do was in fact not a secondary work of commentary on the classical texts, but a continuation of the very translinguistic process, or process of impossible translation that coincided with the history of philosophy itself.

Let me now try and explain to you as simply as possible how I understood the question of the intrinsic association of self and own in Locke’s text, and how I was lead to my mistake. I think that the best thing to do here is to literally quote from three crucial passages in the development of Locke’s argument where you will see, so I hope, that the two words self and own are closely associated, so that indeed the meaning that Locke wants to communicate, and in reality progressively creates or elaborates himself, directly depends on this close association. I should ask you also to bear in mind that the problem is presented to you by a French speaker, who does his best to directly read and understand in English, but also wants and needs to find French “equivalents” for the phrases that he is reading. And maybe, I wish I could convince you of that, this passage through equivalents in the neighbouring language (the one for example in which Locke would read the texts of his closest interlocutors, such as Descartes and Malebranche) is useful, perhaps indispensable, to properly understand and discuss the meaning of these English phrases. But in reality there is no equivalent, or no exact equivalent. Most of these phrases are literally untranslatable, intraduisibles, and this is due in particular to the semantic and syntactic properties of the terms self and own in English, as compared with their nearest counterparts in French, such as moi or soi in the first case, and propre and le propre in the second. And I will have to draw your attention to the spellings that are used by Locke, conforming to 17th century habits that today look a little archaic, but are still understandable, in particular the habit of spelling such expressions as myself, itself, him self or oneself as if made of two separate words : my self, etc., a spelling that allows Locke to consciously play on the double understanding of the expressions as pronouns or possessive expressions, literally or implicitly, such as my self (= the self that is mine, that is my own self, or simply that is my own), but also by analogy it self (= its self, the self that belongs to it, that is its own self, or that is its own). I will return to these grammatical subtleties, which I think are anything but external to the semantic and theoretical effects of Locke’s writing. And now let me give you some examples:
Essay on Human Understanding, Book II, chapter 27, § 14 (in the course of the discussion of the question whether different consciousnesses or memories in the same individual would make different persons or identities, and conversely one single consciousness or a continuity of memory from one to the other would make one single identical person of two men or individuals): “Let any one reflect upon himself, and conclude that he has in himself an immaterial spirit, which is that which thinks in him, and, in the constant change of his body keeps him the same: and is that which he calls himself: let him also suppose it to be the same soul that was in Nestor or Thersites, at the siege of Troy, (…), which it may have been, as well as it is now the soul of any other man: but he now having no consciousness of any of the actions either of Nestor or Thersites, does or can he conceive himself the same person with either of them? Can he be concerned in either of their actions? attribute them to himself, or think them his own, more than the actions of any other men that ever existed?”

Id., § 17 and 18 : “(17) Self is that conscious thinking thing (…) which is sensible or conscious of pleasure and pain, capable of happiness or misery, and so is concerned for itself, as far as that consciousness extends. Thus every one finds that, whilst comprehended under that consciousness, the little finger is as much a part of himself as what is most so. Upon separation of this little finger, should this consciousness go along with the little finger, and leave the rest of the body, it is evident the little finger would be the person, the same person; and self then would have nothing to do with the rest of the body (…) That with which the consciousness of this present thinking thing can join itself, makes the same person, and is one self with it, and with nothing else; and so attributes to itself, and owns all the actions of that thing, as its own, as far as that consciousness reaches, and no further; as every one who reflects will perceive. (18) In this personal identity is founded all the right and justice of reward and punishment; happiness and misery being that for which every one is concerned for himself, and not mattering what becomes of any substance, not joined to, or affected with that consciousness. For, as it is evident in the instance I gave but now, if the consciousness went along with the little finger when it was cut off, that would be the same self which was concerned for the whole body yesterday, as making part of itself, whose actions then it cannot but admit as its own now. Though, if the same body should still live, and immediately from the separation of the little finger have its own peculiar consciousness, whereof the little finger knew nothing, it would not at all be concerned for it, as a part of itself, or could own any of its actions, or have any of them imputed to him.”

Id., § 23-24 : “(…) So that self is not determined by identity or diversity of substance, which it cannot be sure of, but only by identity of consciousness. (24) Indeed it may conceive the substance whereof it is now made up to have existed formerly, united in the same conscious being: but, consciousness removed, that substance is no more it self, or makes no more a part of it, than any other substance; as is evident in the instance we have already given of a limb cut off (…) In like manner it will be in reference to any immaterial substance, which is void of that consciousness whereby I am my self to my self : if there be any part of its existence which I cannot upon recollection join with that present consciousness whereby I am now my self, it is, in that part of its existence, no more my self than any other immaterial being. For, whatsoever any substance has thought or done, which I cannot recollect, and by my consciousness make my own thought and action, it will no more belong to me, whether a part of me thought or did it, than if it had been thought or done by any other immaterial being anywhere existing.”

Id., § 26 : “Person, as I take it, is the name for this self. Wherever a man finds what he calls himself, there, I think, another may say is the same person. It is a forensic term, appropriating actions and their merit; and so belongs only to intelligent agents, capable of a law, and happiness, and misery. This personality extends it self beyond present existence to what is past, only by consciousness,– whereby it becomes concerned and accountable; owns and imputes to it self past actions, just upon the same ground and for the same reason as it does the present. All which is founded in a concern for happiness, the unavoidable concomitant of consciousness; that which is conscious of pleasure and pain, desiring that that self that is conscious should be happy. And therefore whatever past actions it cannot reconcile or appropriate to that present self by consciousness, it can be no more concerned in than if they had never been done (…)”

I apologize for these long quotations, but there is something material here that has to be heard, and shown. I hope that you agree with the following two suggestions. One, an essential part of the argument rests upon the idea that consciousness (or consciousness and memory) is the operator, or the system of mental operations, which “appropriates the self (or simply self , as a proper name) to itself”, where to “appropriate” at the same time means to identify with and to make a property, a separated or private ownership of, and where also itself should be heard as it(s) self, in a mirror construction. This becomes obvious when the idea is transposed at the first person (but the corresponding experience is by definition an experience in the first person): consciousness appropriates my self to my self. Second, an equally essential part of the meaning of the argument rests upon the use of the whole spectrum of uses and significations of the word own, which is both adjective (as in “my own thought and action”) and verb (to own), and again as a verb used equivocally as signifying either to acknowledge, to confess (in French avouer) or to possess, to be the owner of (in French posséder or avoir), or indeed both, because you cannot own something that is not your own, or the fact that you own something i.e. recognize that you are accountable for it eo ipso makes it your own, particularly in the case of actions, which we will see is the crux of the problem. As a consequence of these remarkable linguistic and theoretical operations depending on pure words, I was led, and I am led, to suggesting that the fundamental logic of this argument is a circularity where the ideas of identity and identification on one side, and of appropriation and the property or the propre on the other side continuously exchange their functions, and become virtually equivalent. So that what I can consider as me, myself, is my self, and “my” self is some “thing” that I own, or that I must own (confess) is mine, was done or thought by me, has become my own because I appropriated it to me by doing it or thinking it consciously. But to appropriate it to me is to appropriate/identify it to my self, to what is already properly mine and indiscernible from me because I appropriated it to me, etc. What is my own in the strong sense is myself/my self, and what is myself (or identical with me: you find in the text the compound adjective self-same, which Latin speakers would say combines the objective meaning of idem and the reflective meaning of ipse, bringing together the notions of sameness and selfhood) is my self, i.e. anything that is my own (possession) that I can own (confess), and only that… I thought that this was not only a linguistic curiosity, or a nice rhetorical use on the part of Locke of remarkable properties of the English language, but also a metaphysical fact or event, or better say a metaphysical language game, that had just the same importance as other well-known cases, such as in particular the syntactic properties of the Greek verb einai, eimi, esti, on, ousia, etc. for the constitution of the metaphysics of “being”, or the latent play on words in any use of the term “subject” because of its double Latin etymology, which combines a reference to the impersonal subiectum, the bearer or substratum of certain properties, with a reference to the personal subiectus, the individual who is subjected to the rule, authority or domination of another person. And I thought that I could ground on the discovery of this linguistic game, if not an explanation, at least an interpretation and a better understanding of the close relationship that exists in Locke and others between a problematic of the subject where consciousness becomes the criterion of personal identity and a political theory where the notion of citizenship becomes generalized, or better said universalized, because any individual ought to be considered a “proprietor of his/her own person” or a self-owning personality, and to the extent that he or she is such a proprietor (it seems, I must say, that “she” has more difficulties than “he”, but I leave this aside for the moment). And the reason for this close relationship, which indeed is an equivalence, would be precisely this metaphysics of appropriation or, as Derrida would say, propriation, whose linguistic expression but also linguistic anticipation is provided by the circularity of meanings between my self and my own, or the fact that you can explain self only by referring to own, and own only by referring to self. This I thought was the heart if not of Western ontology, as Macpherson has written, at least of Western or more precisely European psychological, moral, juridical, and political individualism.

But I was tempted to assert more, and once again this temptation was associated with a reading of an English text, a presumptuous reading I must say. I was tempted to assert that self and own, or if you prefer , my self and my own, the self and the own, were indeed one and the same. This would be both a speculative identity, and a very trivial, material identity, inscribed in the materiality of language, or rather of a specific idiom. In historicist terms, this amounted to explaining that Locke could give European individualism its metaphysical foundations because he was English and spoke English, because there was in English a “speculative” element represented by the synonymy of my self and my own, at least in some uses. It is always nice to discover, or imagine, that any language has its speculative elements, each time different, but with huge consequences, that this is not the privilege of Greek, or German. How was I led to this illusion, or simplification? I ask you to remember the formulations that I extracted from the Essay, they are sometimes indeed coming very close to this equivalence, but they never pure and simply exchange the expressions “my self” and “my own”, or they identify their meaning only implicitly and with the help of such mediations as “appropriation” or “concern” or “attribute” or “impute” etc. The evidence had to come from outside.

It happened that at the time I was working on this, I was also rereading the Diary of André Gide, don’t ask me why. You may know that Gide was very fond of English literature, had a good mastery of the English language, and played an important role indeed in the introduction and translation of contemporary English writers in France (such as Joseph Conrad). In his Diary you find quotations from poems in the original language, and I fell upon the following strophe from the poem by Robert Browning called By the Fire Side, which has become part of the collection “Men and Women”:
“My own, confirm me! If I tread
This path back, is it not in pride
To think how little I dreamed it led
To an age so blest that, by its side,
Youth seems the waste instead?”
I must say that I was deeply moved by these verses, probably because I erroneously thought that the “age” of which it is a question here was the old age, the age into which I felt that I was entering now, or would soon be (and again I was probably fooled to understand it that way by the context in which André Gide quoted it, which in any case had to do with the problem of seeking an assurance against the uncertainty of one’s own identity, or self, in the recollection of memory). But above all I took it that the interpellation, represented here by the beginning of the strophe: “My own, confirm me!”, was a self-interpellation, a classical rhetorical move in which the poet lyrically addresses himself, or calls himself as a witness of his own life. And somehow, identifying with him, I would repeat: “My own, confirm me…”, believing that I was speaking to myself. But above all, and I recognize that this was not very serious, that it was much too fragile a basis for a scholarly interpretation, I thought (and wrote) that I had found an example where “My self” and “my own” in English are, i.e. mean one and the same. But actually as you all understand, because English is your mother tongue, this is not the case. As for myself, apart from some troubled reactions that I received from friends, which should have acted as warnings, I had to wait until I found the whole poem on the shelves of UCI’s Main Library, in Robert Browning’s Collected Works. And here is what I could read (allow me to take the time to read not only the following strophe, where the apostrophe “My own…” returns, but two or three others, not only because they are so beautiful, but because, while lifting any ambiguity even for a French reader, they introduce a speculative dimension, the dimension of the tension between unity and duality, or the fusion of the lovers into a mystic unity and the perhaps more disturbing emergence of the double who owns the identity of the subject):
“My own, confirm me! If I tread
This path back, is it not in pride
To think how little I dreamed it led
To an age so blest that, by its side,
Youth seems the waste instead?

My own, see where the years conduct!
At first, ‘twas something our two souls
Should mix as mists do; each is sucked
In each now: on, the new stream rolls,
Whatever rock obstruct.

Think, when our one soul understands
The great Word which makes all things new.
When earth breaks up and heaven expands,
How will the change strike me and you
In the house not made with hands?

Oh I must feel your brain prompt mine,
Your heart anticipate my heart,
You must be just before, in fine,
See and make me see, for your part,
New depths of the divine!

But who could have expected this
When we two drew together first
Just for the obvious human bliss,
To satisfy life’s daily thirst
With a thing men seldom miss?”

Now quickly to remind you some facts about theses verses. First, of course, “my own” does not designate the poet himself, it designates his beloved wife, this is a love poem, a poem of bliss, dedicated by the young husband to his wife recalling their first encounter and their night of love under the Italian sky near an old chapel etc. etc. And the allusion to the old age, if it is there, is only an anticipation, as shown by a previous strophe which adds interesting variations on the theme of own and owning: “My perfect wife, my Leonor, / Oh heart, my own, oh eyes, mine too, / Whom else could I dare look backward for, / With whom beside should I dare pursue / The path grey heads abhor ?” (we may remember also that this love story was soon interrupted by the premature death of his wife, but let’s not add pathos). Now playing the role of the French student a little longer, let me remark that, although the expression “my own” in such circumstances and relations is very common in English, only a presumptuous apprentice could ignore it, it remains very idiomatic. In French or German or Italian (which perhaps comes closest) you have similar expressions, but they never have quite the same simplicity, I am tempted to say the same brutality, the same brutal tenderness and closeness: such as mon trésor or mon chéri, which are deemed vulgar, or mon âme, mon Coeur, which are elevated and old fashioned, or Mein Schatz, or mio bene or caro mio bene, as in Gluck’s Orfeo ed Euridice. I will not embark on discussing whether English lovers are more possessive than others, and curb the language to express this possessive character of their feelings, which is also a way to make love the only true form of possession, but I will return to the construction of “personal identity” or “identity through consciousness” in Locke, and show that there can be a benefit in the detour provoked by my mistake. I mean that a benefit can be found in reading together Robert Browning’s poem and John Locke’s essay. This benefit has to do with a better understanding of the extremely subtle, and in a sense confusing, modality in which the question of duality is involved in this construction of the concept of identity.
Why is it subtle, and perhaps confusing? This is because in a sense it is simultaneously asserted at one level and denied at another one, asserted at the level of enunciation and denied at the level of the enunciated, or asserted at the level of the signifier and denied at the level of the signified. More precisely language continuously works with dualities that theory immediately blurs or nullifies. Language continuously duplicates a self, or a self who is owning and a self who is owned, and has to do it in order to name the poles, the moments of the process of identification described, whereas theory explains that the self is one and the same, “the same to itself” because it “owns itself” or is its “own self”. Let us not haste to declare that this tension falls under the accusation of “performative contradiction”, of if this is the case, let me suggest that the text really makes a productive use of the contradiction, i.e. it can be associated with several important aspects of the problem of personal identity that are practically taken into account by Locke himself, or he would not have produced such a complicated, lengthy, rhetorical and poetical argument in order to explain that we ought to judge of a person’s identity and therefore responsibility (be it before the Human tribunals or before the Tribunal of God in the Day of the Last Judgment) after the only criterion which the person herself can accept and verify (i.e. “own”), namely her own consciousness of having thought and acted in a certain manner. And if the text makes a productive use of the contradiction, that is of the fact that the unity of the self is divided or duplicated by the simple fact of naming it (and here the use of self as proper name becomes particularly interesting) while the theory demonstrates its identity, this is because the text of course is acutely aware of the fact that the whole meaning of the argument can be captured only if it is meant and reproduced in the first person (this is the only “Cartesian” element in this text, perhaps, but it is a powerful one). I speak about myself, therefore about my “self”, and therefore put it or him at a distance, nearly to become able to address or interpellate it (or him), but the content of this interpellation is self-identification, not a disowning but an owning of oneself, a discovery of what is not separable, not alienable from me, because it is me indeed – that is: my consciousness. The first person is a shifter (Roman Jacobson), it enacts the performative contradiction continuously, or it bridges the gap between enunciation and enunciated while displaying their difference.
This could be said in Lockean terms, and this is probably one of the most fascinating interpretive possibilities opened by the conceptual fabric of the Essay. We could say that, by pure and simply posing the identity of my self and my own, and above all by confirming this identity as an essential identity on the basis of a wrong linguistic argument, I actually blurred the element of uneasiness that characterises this unity, or affects it. The developments on uneasiness arise in another fantastic chapter of Book II of the Essay, chapter 21 “Of Power”, where, in a manner that is not so different from what we find in Spinoza for example, Locke explains that there is no consciousness that is not associated with desire and at the same time troubled and pushed by it towards ever new contents or ideas, so that the notion of a fixed or stable consciousness is a contradiction in terms, consciousness is by its very nature restless, it must escape itself towards new contents, or its identity is associated with a perpetual flow, change, “train of ideas”: the category which names this intrinsic association of consciousness and desire being precisely uneasiness. So I would suggest by recurring to Locke himself, although from another place, that what I had a tendency to blur and in the end ignore, by progressively identifying self and own, posing that the self is exactly the same thing as the own, what is owned by me inasmuch as I own it (speaking of thoughts, and actions), was the uneasiness of this relation, the fact that the identity or sameness of self and own does indeed exist, but only as an uneasy one. And it is all the more remarkable that Locke so to speak expressed this uneasiness not mainly in the form of an explicit thesis or theorem, but above all in the materiality and linguistic subtlety of his writing, which so to speak mimics the uneasy process of differentiation of the unity in order to produce identity, or the process of differed appropriation or ownership of the self, or the dialectical process of the production of a difference within self-consciousness that exists only in order to become suppressed and negated, the production of a vanishing difference.
But allow me to return for a second to Robert Browning’s poem. There is an element in this poem that indeed made all the difference with a pure and simple appropriation of identity, or one’s own identity, which I have apparently made no use of, although it was precisely the absent cause of my mistake: this is the element of sexual difference. My own is my wife, perhaps it could be also my husband, or more generally we would say today it is my partner. It is the other with whom I make one and the same precisely because we can never become identified, indiscernible, in other terms with whom I experience the uneasy relationship of identity and difference, not only because it is conflictual, but because the identification of what is shared, or what is the same, and of what is separated, or divorced, can never be established in a clearcut and stable manner. The name of this uneasy experience conventionally is “love”, but we know that love is anything but a simple thing, perhaps because in love there is precisely so much consciousness, associated with so much desire. In short, duality is neither unity nor multiplicity (remember again a linguistic hint: the Greeks had a grammatical category of the dual). Let us see, to conclude, if we can draw something for the understanding of the relation of self and own in Locke, from the fact that their “uneasy” relationship might refer, at least in an oblique way, to the sexual difference, or to the general fact that a unity haunted by its own scission, or reduplication, or the idea of a self striving at its appropriation of itself (himself, herself) or at becoming its own through the projection of doubles, however vanishing they will prove, must bear at least a metaphoric relationship with the sexual difference. Not so much perhaps, the difference among “sexes” or even “sexualities”, as if they were fixed terms already existing before the process, but rather again a differentiation whose definition would have a necessary relation to the experiences of sexuality. This will lead me to suggesting you another range of textual comparisons.

If I had time I would start here a discussion centred on the adventures of the idea of the “vanishing duality” of the phenomenon of consciousness after Locke, and as a consequence of Locke’s formulations. But this would be much too long, and in a sense you would not be very surprised, even if in the detail the various philosophical figures of the analysis of consciousness, or personal identity, or both, in terms of a unity of opposite aspects of the self which allow it to become its own, and the rhetorical or linguistic instruments that have to be implemented or invented in order to describe such a dialectic, are incredibly complex and diverse. There would be Hegel of course, and it is not by chance that I have been playing at times with a Hegelian terminology to suggest that already in Locke there is a passage from a point of view of appropriation as a fact, or a result, to the point of view of appropriation as process. What is particularly interesting in Hegel, in the way in which he describes the experience of consciousness as an experience of successive scissions and unifications or syntheses, where the self appears to itself alternatively in the form of “certainty” and “truth”, which are at the same time inseparable and incompatible, is indeed the fact that Hegel displays with an extraordinary force the ambivalence of the process of “appropriation”, which produces at the same time identification and de-identification, or dis-owning (in the Phenomenology of Mind). This can be explained, indeed, by the fact that in Hegel the “subject” of the process is no longer the individual self, neither is it a collective substantial self, but it is the problematic, precisely uneasy, relationship between the individual and the community or the general substance, that can be viewed and that can view itself as a “self”, an infinite process of identification through appropriation. However, what I find remarkable in Locke, when we compare his formulation with Hegel’s, or with others equally remarkable that I had thought of bringing in – such as Adam Smith’s construction of the “supposed impartial Spectator” as the internal or interiorised figure of the generic other produced by the effect of sympathy within the self : “I divide myself as it were, into two persons…”; or George Herbert Mead’s internal dialectic of the “self” as a tendencial opposition of “I” and “Me” where I become divided among personalities each of which represents a sharing or participating in a specific network of social communication - what is remarkable in Locke I repeat is the fact that precisely in his case the duality or dualism (if only the duality of the past self and the present self, or the owned and the owning, or the identified and the identifying self) without which the idea of appropriation could not be sustained, is essentially vanishing, it is not theorized, one might say fetishized, in the form of “instances” or “agencies” or “moments” in a dialectic of consciousness, it is rather simply indicated in its elusive and vanishing nature, in its nature of pure temporal or memorial flow, through the rhetoric of the discourse and its play on words.
Now this characteristic, which I call the subtlety of Locke, is compensated so to speak, or it has a counterpart, which is the emergence of duality in another form, which is fantastic indeed, and which I would suggest – at least through comparisons – ultimately has a “sexual” content, in the general sense. I am thinking here of the extraordinary developments on the division or fusion of personalities as a consequence of actual or imaginary divisions or fusions of consciousnesses (it is a remarkable stylistic trait of Locke that he allows himself to use the term consciousness in the plural), which historically place Locke somewhere in the way that leads from ancient speculations on the transmigration of souls and the reincarnations of dead persons to typically modern experimental considerations (which for all that are perhaps no less speculative) on “multiple personalities” and the so-called “multiple personality syndrome”. In fact I think that the whole problem of multiple personalities is a pure Lockean problem, whether authors admit with more or less qualifications, or refuse the idea that such a thing exists in the strong sense as a horizontal division of memory and time whereby one and the same physical individual becomes split into 2, 3, or more (up to 18) “personalities”, each of them “owning” her own experiences, her own memories, her own behavior towards others, calling herself by her own name, in short living her own life, with discontinuous transitions from one to another. Now let’s read the following passage in the Essay (II.27. 23), from which I had already extracted one phrase:
Locke, Essay on Human Understanding, Book II, chap. 27, § 23 : “Nothing but consciousness can unite remote existences into the same person: the identity of substance will not do it; for whatever substance there is, however framed, without consciousness there is no person: and a carcass may be a person, as well as any sort of substance be so, without consciousness. Could we suppose two distinct incommunicable consciousnesses acting the same body, the one constantly by day, the other by night; and, on the other side, the same consciousness, acting by intervals, two distinct bodies: I ask, in the first case, whether the day and the night– man would not be two as distinct persons as Socrates and Plato? And whether, in the second case, there would not be one person in two distinct bodies, as much as one man is the same in two distinct clothings? Nor is it at all material to say, that this same, and this distinct consciousness, in the cases above mentioned, is owing to the same and distinct immaterial substances, bringing it with them to those bodies; which, whether true or no, alters not the case: since it is evident the personal identity would equally be determined by the consciousness, whether that consciousness were annexed to some individual immaterial substance or no. For, granting that the thinking substance in man must be necessarily supposed immaterial, it is evident that immaterial thinking thing may sometimes part with its past consciousness, and be restored to it again: as appears in the forgetfulness men often have of their past actions; and the mind many times recovers the memory of a past consciousness, which it had lost for twenty years together. Make these intervals of memory and forgetfulness to take their turns regularly by day and night, and you have two persons with the same immaterial spirit, as much as in the former instance two persons with the same body. So that self is not determined by identity or diversity of substance, which it cannot be sure of, but only by identity of consciousness.”

In this passage we see clearly how the Lockean rejection of the old dualisms of body and soul or mind, through the radical use of the criterion of identical consciousness, with its internal uneasy or vanishing process of differentiation, directly conduces to the admission of another duality, which I called fantastic, or which becomes easily projected into the fantastic realm where the distinction of “personalities” or “identities” or “selves” coincides with a cosmic conflict between day and night, or the forces of the good and the forces of evil, whose origin and consequences are beyond human reach, and perhaps beyond human understanding.
This will become clearer if we recognize that Locke’s passage cannot be isolated, that it belongs to a tradition or forms a link in a chain, where the same question of the division of the self expressed in the form of a duality of consciousness or consciousnesses has received a full treatment. In my earlier commentary (John Locke. Identité et difference…, pp. 237-240) I suggested that this passage be compared, on the one hand, with a passage in Augustine’s Confessions, and on the other hand with the Novel or Short Story by Robert-Louis Stevenson, The Strange Case of Dr. Jekyll and Mister Hyde (published in 1886). Locke is half-way between them, somehow, but he is also at a distance. These are three stories of the conflict and the separation, possible or impossible, of the “Day-man” and the “Night-man”, who are acting along opposite moral values, and impersonating opposite principles, and, together with others that we might add, they cannot be unrelated.
Here is Augustine’s passage:
“iubes certe ut contineam a concupiscentia carnis et concupiscentia oculorum et ambitione saeculi. iussisti a concubitu et de ipso coniugio melius aliquid quam concessisti monuisti. et quoniam dedisti, factum est, et antequam dispensator sacramenti tui fierem. sed adhuc vivunt in memoria mea, de qua multa locutus sum, talium rerum imagines, quas ibi consuetudo mea fixit, et occursantur mihi vigilanti quidem carentes viribus, in somnis autem non solum usque ad delectationem sed etiam usque ad consensionem factumque simillimum. et tantum valet imaginis inlusio in anima mea in carne mea, ut dormienti falsa visa persuadeant quod vigilanti vera non possunt. numquid tunc ego non sum, domine deus meus? et tamen tantum interest inter me ipsum et me ipsum intra momentum quo hinc ad soporem transeo vel huc inde retranseo! ubi est tunc ratio qua talibus suggestionibus resistit vigilans et, si res ipsae ingerantur, inconcussus manet? numquid clauditur cum oculis? numquid sopitur cum sensibus corporis? et unde saepe etiam in somnis resistimus nostrique propositi memores atque in eo castissime permanentes nullum talibus inlecebris adhibemus adsensum? et tamen tantum interest ut, cum aliter accidit, evigilantes ad conscientiae requiem redeamus ipsaque distantia reperiamus nos non fecisse quod tamen in nobis quoquo modo factum esse doleamus. »

What seems to be important in the case of Augustine’s description of the involuntary emissions of seminal liquor provoked during the night by the visit of feminine figures returning from the luxurious past of the saint (incubae), is its contribution to the discussion of the extent to which a conversion, i.e. a turn from the love of one-self or self-love to the exclusive love of God, and therefore also the abandonment (subiectio) to the absolute power of God, determines a radical change of identity, the emergence of a new man. We know that Book 10 in the Confessions is entirely devoted to a complex discussion of the relationship between memory (memoria, which practically subsumes all the intellectual operations of the mind as well) and desire (concupiscentia) in the constitution of the moral personality, or the relationship of one with oneself.
What I find particularly interesting is the fact that Augustine, while he compares different modalities of desire from his own experience by telling the story of his own life, would make a difference between sexual desire and other forms of desires associated with pleasures that we have more difficulties to forget. While he asserts that sexual desire, at least in the form of the physical desire for the beauty and sensuality of other bodies, can be completely overcome or suppressed, and this is what he claims he has succeeded to achieve, the pleasure of eating and drinking, the pleasure of seeing beautiful landscapes and works of art, the pleasure of learning and discovering through the exercise of intellectual capacities, the pleasure of being morally right and so appreciated by others, are much more difficult to forget: they give rise to an infinite conflict, a struggle that is coextensive with life, where the “two men”, who are associated with “two loves” (human and divine), and belong to “two Cities” or two Worlds, this one and the Other, exist simultaneously and confront each other. Now this situation can be read in the other direction, as a consequence of the symptomatic accident that takes place during the night. Augustine is lead to ask the question: who is the subject of this involuntary pleasure for whom the traces of memory are in a sense more real than the real? Is that me, or is it not me? The two hypotheses are equally disturbing, and the uneasiness that they provoke should be related with the reflections of Augustine on the involuntary element which resides within the will itself and testifies for the presence of evil as a “sleeping” element that disturbs the inclination toward the good itself. But there is worse than that, since the only possible explanation for the persistence of a desire, and with the desire, a personality or a “man” who had been entirely suppressed, is that this desire or relationship with pleasure is preserved by God, it resides in the very same intimate place of the self as God and the truth itself, interior intimo meo, which appears to be the place of Otherness, or the place of the worrying ambivalence of love. The Night man is the remainder of ambivalence that prevents the love of God from reaching certainty, and keeps casting a doubt or a shadow over the intentions of God concerning His servant….
How about Stevenson now? The text is very complex, and there is certainly not one way to read it. First of all, it seems to me more than likely that Stevenson is permeated with Augustinian themes and literal reminiscences, not only of course the designation of the content of the last chapter as a “confession” of Jekyll’s. Second, I have no precise idea concerning possible reading of Locke by Stevenson, but it strikes me that, in a sense, the full story of Jekyll and Hyde is a passage from the second hypothesis proposed by Locke (one single mind or consciousness in two different bodies) to the first one (two different consciousnesses within one single body). This is also the reason why the story told by Stevenson is not exactly a “multiple personality” story, it is rather a play with this scientific imaginary, and a critical questioning about its meaning.
The crucial passage takes place when, in the course of his “confession”, Jekyll explains how he discovered that the second personality (he writes “the second self”) that he has created through the use of “transcendental” medicine, in order to exteriorise the “dual nature” of man, or to carry an experience of effective dissociation of the good man and the evil man, the Day-man and the Night-man, is no longer his “own”, that is emerges in an unpredictable manner as if by his own (evil) will, but in reality as a consequence of the blind forces of degeneracy or “bestiality” that have been released. This is truly the moment in which the “thing” created by Jekyll and in which he has projected or concentrated all his desires to be “himself”, free from the constraints of society (from what is called “the very pink of the proprieties”) becomes a “person”, because it becomes a monster, the master’s master (as the butler would explicitly declare in the novel). And this is the moment when in his confession Jekyll declares himself unable to identify with Hyde, or to say “I” when describing Hyde’s actions. But in reality, or “in the real”, not to say ‘in the thing” (except that this real is the real of a fiction, created by writing) , this is the moment when the two identities have become so inseparable that they cannot even be separated by death. Jekyll has to kill himself in order to kill Hyde (of course the play on words has been remarked among others by Masao Miyoshi, and it is a French-English play on words: the name says “Jekyll” or “Je kill”, I kill, or better I kill the “Je”, the I, or the otherness of the I). But this killing is so ambiguous that we cannot even know if it means absolute dissociation or ultimate identification, or who, exactly, will be “judged” after that. Unless we pure and simply take it as a perfect allegory of the death drive, Jekyll being clearly a melancholic figure. Witness the following passage:
“My reason wavered, but it did not fail me utterly.  I have more than once observed that in my second character, my faculties seemed sharpened to a point and my spirits more tensely elastic; thus it came about that, where Jekyll perhaps might have succumbed, Hyde rose to the importance of the moment.  My drugs were in one of the presses of my cabinet; how was I to reach them? That was the problem that (crushing my temples in my hands) I set myself to solve.  The laboratory door I had closed.  If I sought to enter by the house, my own servants would consign me to the
gallows.  I saw I must employ another hand, and thought of Lanyon. How was he to be reached? how persuaded?  Supposing that I escaped capture in the streets, how was I to make my way into his
presence? and how should I, an unknown and displeasing visitor, prevail on the famous physician to rifle the study of his colleague, Dr. Jekyll?  Then I remembered that of my original character, one part remained to me:  I could write my own hand; and once I had conceived that kindling spark, the way that I must follow became lighted up from end to end. (…) Thenceforward, he sat all day over the fire in the private room, gnawing his nails; there he dined, sitting alone with his fears, the waiter visibly quailing before his eye; and thence, when the night was fully come, he set forth in the corner of a closed cab, and was driven to and fro about the streets of the city.  He, I say—I cannot say, I.  That child of Hell had nothing human; nothing lived in him but fear and hatred. And when at last, thinking the driver had begun to grow suspicious, he discharged the cab and ventured on foot, attired in his misfitting clothes, an object marked out for observation, into the midst of the nocturnal passengers, these two base passions raged within him like a tempest.  He walked fast, hunted by his fears, chattering to himself, skulking through the less frequented thoroughfares, counting the minutes that still divided him from midnight.  Once a woman spoke to him, offering, I think, a box of lights.  He smote her in the face, and she fled.

(…) At all hours of the day and night, I would be taken with the premonitory shudder; above all, if I slept, or even dozed for a moment in my chair, it was always as Hyde that I awakened.  Under the strain of this continually impending doom and by the sleeplessness to which I now condemned myself, ay, even beyond what I had thought possible to man, I became, in my own person, a creature eaten up and emptied by fever, languidly weak both in body and mind, and solely occupied by one thought the horror of my other self.  But when I slept, or when the virtue of the medicine wore off, I would leap almost without transition (for the pangs of transformation grew daily less marked) into the possession of a fancy brimming with images of terror, a soul boiling with causeless hatreds, and a body that seemed not strong enough to contain the raging energies of life.  The powers of Hyde seemed to have grown with the sickliness of Jekyll.  And certainly the hate that now divided them was equal on each side.  With Jekyll, it was a thing of vital instinct.  He had now seen the full deformity of that creature that shared with him some of the phenomena of consciousness, and was co-heir with him to death:  and beyond these links of community, which in themselves made the most poignant part of his distress, he thought of Hyde, for all his energy of life, as of something not only hellish but inorganic.  This was the shocking thing; that the slime of the pit seemed to utter cries and voices; that the amorphous dust gesticulated and sinned; that what was dead, and had no shape, should usurp the offices of life.  And this again, that that insurgent horror was knit to him closer than a wife, closer than an eye; lay caged in his flesh, where he heard it mutter and felt it struggle to be born; and at every hour of weakness, and in the confidence of slumber, prevailed against him, and deposed him out of life.  The hatred of Hyde for Jekyll was of a different order.  His terror of the gallows drove him continually to commit temporary suicide, and return to his subordinate station of a part instead of a person; but he loathed the necessity, he loathed the despondency into which Jekyll was now fallen, and he resented the dislike with which he was himself regarded.  Hence the ape-like tricks that he would play me, scrawling in my own hand blasphemies on the pages of my books, burning the letters and destroying the portrait of my father; and indeed, had it not been for his fear of death, he would long ago have ruined himself in order to involve me in the ruin.  But his love of me is wonderful; I go further:  I, who sicken and freeze at the mere thought of him, when I recall the abjection and passion of this attachment, and when I know how he fears my power to cut him off by suicide, I find it in my heart to pity him »

To conclude briefly: how shall we understand these variations? We can remark that both Augustine and Stevenson clearly describe a duality that has a sexual connotation, or more generally concerns the disturbing presence of otherness within every consciousness that seeks to identify itself with a “self”, or reach self identity, as a radical conflict which cannot be solved in ordinary life. One of them describes it in moral-theological terms, and the other in physiological-fantastic terms. In both cases the “end” is absolute disowning of the self, either in God, in the form of God’s love who installs himself in interiore homine to reveal a truth and embody an authority which is the condition for man’s salvation, or in the form of Death, the master’s master, which becomes also projected in the form of a being that is at the same time interior and exterior, myself and my monstrous desire to escape all identity, therefore also all accountability. Now we might say that what distinguishes Locke from these two extremes is the fact that the supreme principle in his case is neither God nor the Death, but something like life (and consciousness is clearly associated with life, or better it is the instrument of the elevation of life to the status of principle or value). But Locke is a really great philosopher, therefore also a writer: while carrying to the last consequences the project of defining the “self” not in terms of internal conflict, or as divided self, but in terms of progressive appropriation and tendencial identity of self and own, being oneself and having or possessing oneself, he cannot pure and simply ignore the fact that any identity includes otherness or has to be defined in terms of an intrinsic relationship to its other. But he separates two figures: one is the figure of uneasiness, the tension between self and own that keeps life and consciousness in a condition of perpetual move: we might say that this is the normal form of life, but we might also say that the normality of life is uneasy. The other figure is a limit form, or a form (and also a state) of exception, that takes place when normality is not only uneasy but mentally or morally impossible: it is the radical dissociation of personality and individuality, or the cleavage of the bodily and mental life. In a sense it is the truth of the first, because it shows that there is nothing natural in the identification of self and own, which is really a norm rather than a necessity, and reigns by virtue of a postulate.

Published 2006 in Bill Maurer and Gabrielle Schwab (eds.), Accelerating Possession. Global Futures and Personhood, Columbia University Press, New York

I quote from John LOCKE : An Essay concerning Human Understanding, Edited with an introduction by Peter H. Nidditch, Oxford University Press 1975 (reprinted 1990). Among the commentaries see in particular : ALLISON Henry E.: "Locke's Theory of Personal Identity : a re-examination", in Locke on Human Understanding, Selected Essays edited by I.C. Tipton, Oxford University Press 1977 ; AYERS Michael: Locke, Epistemology and Ontology, "The Arguments of the Philosophers", Routledge, Londres 1991 ; CARUTH Cathy: Empirical Truths and Critical Fictions. Locke, Wordsworth, Kant, Freud, The Johns Hopkins University Press, Baltimore 1991 ; OLIVECRONA K.: "Locke's Theory of Appropriation", Philosophical Quarterly, 24/96, 1974 ; THIEL Udo: "Locke's Concept of Person", in BRANDT R. (ed.), John Locke. Symposium Wolfenbüttel 1979, Walter de Gruyter, Berlin-New York 1981 ; THIEL Udo (Hrsg.): John Locke. Essay über den menschlichen Verstand, Klassiker Auslegen, Band 6, Akademie Verlag, Berlin 1997.

Barbara Cassin (ed.), Vocabulaire européen des philosophies, Editions du Seuil-Le Robert, Paris, forthcoming 2004.
Two Treatises of Government, A critical Edition with an Introduction and Apparatus criticus by Peter Laslett, Revised Edition, Cambridge University Press 1963. MACPHERSON Crawford Brough: The Political Theory of Possessive Individualism. Hobbes to Locke, Oxford University Press, 1962.
In what is arguably his most extraordinary and decisive philosophical essay, Jean-Paul Sartre had demonstrated this point from a phenomenological point of view (see « La transcendance de l’Ego » (1934/1939)), in Sartre, La transcendance de l’Ego et autres textes phénoménologiques, Textes introduits et annotés par V. de Coorebyter, Vrin éditeur, Paris 2003.
Identité et différence. Le chapitre II, xxvii de l'Essay concerning Human Understanding de Locke. L'invention de la conscience (traduction, introduction et commentaire par E. Balibar) , Editions du Seuil, Paris 1998.
It was invented by the Cambridge neo-platonist Ralph Cudworth, in his monumental work PRIVATE The True Intellectual System of the Universe, The First Part; Wherein All the Reason and Philosophy of Atheism is Confuted; and Its Impossibility Demonstrated, London 1678 (modern reprint by Thoemmes Press, Bristol, 1995).
See Jean Deprun, La philosophie de l'inquiétude en France au XVIIIe siècle, Librairie J. Vrin, Paris 1979.
On the metaphysical « consequences » of the properties of the Greek verb, see the classical essay by Emile Benveniste, « Catégories de pensée et catégories de langue », in Problèmes de linguistique générale, Gallimard, Paris 1966, pp. 63-74, and the critique by Jacques Derrida, « Le supplément de copule », in Marges de la philosophie, Les éditions de Minuit, Paris 1972, pp. 209-246. More recently Barbara Cassin has proposed a new understanding of the issue in her critical edition, translation and commentary of Parmenides’ Poem : Sur la nature ou sur l’étant, Parménide, La langue de l’être ?, traduction et commentaires par Barbara Cassin, Editions du Seuil, Paris, 1998. On the double genealogy of the subject as subjectus and subjectum, cf. Etienne Balibar, « The subject », in UMBR(A), A Journal of the Unconscious, SUNY Buffalo, 2003, Ignorance of the Law, pp. 9 to 24.
See in particular Jacques Derrida’s Spurs : Nietzsche’s Styles, tr. Barbara Harlow (chicago : University of Chicago Press, 1979), 109-11 and 121-123. C.B. MacPherson, Democratic Theory : Essays in Retrieval (Oxford : Oxford University Press, 1973), 24ff.

André Gide, Journal, Bibliothèque de la Pléiade, Gallimard, Paris, p. 659.

Etienne Balibar, John Locke. Identité et différence…, cit., p. 252.

Robert Browning, « By the Fire Side », §§ XXV-XXIX, The Complete Works of Robert Browning, With Variant Readings and Annotations, Roma A. King, Jr. General Editor, Volume V, Ohio University Press, Athens, Ohio, Baylor University, Waco, Texas, 1981, p. 205-206.

John Locke : An Essay concerning Human Understanding, cit., p. 233- 287 (the discussion of uneasiness begins on p. 251).
See Adam Smith, The Theory of Moral Sentiments, With an Introduction by E. G. West, Liberty Classics, Indianapolis 1969, p. 247, 352, 371, etc. (Adam Smith calls the Impartial Spectator « the Man within the breast » of every man).

George H. Mead : Mind, Self, and Society from the standpoint of a Social Behaviorist, edited and with an introduction by Charles W. Morris, The University of Chicago Press, 1934, p. 135-226.
Mikkel BORCH-JACOBSEN: "Who's Who? Introducing Multiple Personality", in Joan Copjec (ed.), Supposing the Subject, Verso, London-New York 1994.

The Confessions of Augustine : An Electronic Edition, Text and Commentary by James J. O’Donnell © 1992, Book X, § 30.41. The translation by Edward B. Pusey  (Harvard Classics, Collier & Son, New York 1909-1914) reads : « Verily Thou enjoinest me continency from the lust of the flesh, the lust of the eyes, and the ambition of the world. Thou enjoinest continency from concubinage; and for wedlock itself, Thou hast counselled something better than what Thou hast permitted. And since Thou gavest it, it was done, even before I became a dispenser of Thy Sacrament. But there yet live in my memory (whereof I have much spoken) the images of such things as my ill custom there fixed; which haunt me, strengthless when I am awake: but in sleep, not only so as to give pleasure, but even to obtain assent, and what is very like reality. Yea, so far prevails the illusion of the image, in my soul and in my flesh, that, when asleep, false visions persuade to that which when waking, the true cannot. Am I not then myself, O Lord my God? And yet there is so much difference betwixt myself and myself, within that moment wherein I pass from waking to sleeping, or return from sleeping to waking! Where is reason then, which, awake, resisteth such suggestions? And should the things themselves be urged on it, it remaineth unshaken. Is it clasped up with the eyes? is it lulled asleep with the senses of the body? And whence is it that often even in sleep we resist, and mindful of our purpose, and abiding most chastely in it, yield no assent to such enticements? And yet so much difference there is, that when it happeneth otherwise, upon waking we return to peace of conscience: and by this very difference discover that we did not, what yet we be sorry that in some way it was done in us.”

I quote from Robert Louis Stevenson, The Strange Case of Dr. Jekyll and Mr. Hyde, edfited by Martin A. Danahay, broadview literary texts, Peterborough, Ontario, 1999.
The Strange Case of Dr. Jekyll and Mr. Hyde, cit., Chapter 10 : Henry Jekyll's Full Statement of the Case, pp. 75-91.


« The Divided Self », in The Definitive Dr. Jekyll and Mr. Hyde Companion, edited by Harry M. Geduld, Garland Publishing, Inc., New York and London, 1983, p. 104-105.

Felix Nadar: My life as a photographer

Balzac and the Daguerreotype
People were stunned when they heard that two inventors had perfected a process that could capture an image on a silver plate. It is impossible for us to imagine today the universal confusion that greeted this invention, so accustomed have we become to the the fact of photography and so inured are we by now to its vulgarization.

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Georg Lukacs: Theory of the Novel

But a paradox attaches to loneliness in drama. Loneliness, is the very essence of tragedy, for the soul that has attained itself through its destiny can have brothers among the stars, but never an earthly companion; yet the dramatic form of expression — the dialogue — presupposes, if it is to be many-voiced, truly dialogical, dramatic, a high degree of communion among these solitaries. The language of the absolutely lonely man is lyrical, i.e. monological; in the dialogue, the incognito of his soul becomes too pronounced, it overloads and swamps the clarity and definition of the words exchanged. Such loneliness is more profound than that required by the tragic form, which deals with the relationship to destiny (a relationship in which the actual, living Greek heroes had their being); loneliness has to become a problem unto itself, deepening and confusing the tragic problem and ultimately taking its place. Such loneliness is not simply the intoxication of a soul gripped by destiny and so made song; it is also the torment of a creature condemned to solitude and devoured by a longing for community. (Preface to Theory of the Novel)

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Georg Simmel: Die ästhetische Bedeutung des Gesichts

Die unvergleichliche Rolle, die dem menschlichen Gesicht in dem Interessenkreis der bildenden Kunst zukommt, wird doch nur sehr allgemein und wie aus der Ferne dadurch bezeichnet, dass in seiner Form die Seele sich am deutlichsten ausdrückt.

Wir verlangen zu wissen, durch welche sinnlich wahrnehmbaren Bestimmtheiten ihm dieser Erfolg gelingt, und ob nicht, jenseits dieses Grundes, unmittelbare ästhetische Qualitäten des Gesichts seine Bedeutung für das Kunstwerk tragen.

Als die eigentliche Leistung des Geistes kann man bezeichnen, dass er die Vielheit der Weltelemente in sich zu Einheiten formt: das Nebeneinander der Dinge in Raum und Zeit führt er in die Einheit eines Bildes, eines Begriffes, eines Satzes zusammen. je enger die Teile eines Zusammenhanges auf einander hinweisen, je mehr lebendige Wechselwirkung ihr Ausser einander in gegenseitige Abhängigkeit überführt, desto geisterfüllter erscheint das Ganze.

Deshalb ist der Organismus mit der innigen Beziehung seiner Teile zu einander und ihrem Verschlungensein in der Einheit des Lebensprozesses die nächste Vorstufe des Geistes.

Innerhalb des menschlichen Körpers besitzt das Gesicht das äußerste Maß dieser inneren Einheit.

Das erste Symptom und der Beweis dafür ist, dass eine Veränderung, die, wirklich oder scheinbar, nur ein Element des Gesichts angeht, sofort seinen ganzen Charakter und Ausdruck modifiziert: ein Zucken der Lippe, ein Rümpfen der Nase, die Art des Blickens, ein Runzeln der Stirn.

Auch gibt es keinen irgendwie ästhetisch in sich geschlossenen Teil des Körpers, der durch eine Verunstaltung einer einzelnen Stelle so leicht als Ganzes ästhetisch ruiniert werden könnte.

Das eben bedeutet doch die Einheit aus und über dem Vielen, dass keinen Teil dieses ein Schicksal treffen kann, das nicht, wie durch die zusammenhaltende Wurzel des Ganzen hindurch, auch jeden anderen Teil träfe.

Die Hand, die von allen anderen Körperteilen noch am meisten Einheitlichkeit besitzt, kommt doch dem Gesicht nicht gleich: nicht nur weil der wunderbare Zusammenhang und die Zusammenwirksamkeit der Finger dennoch den einzelnen eine viel größere gegenseitige Unabhängigkeit in, ästhetischen Eindruck lässt, sondern auch weil die Hand immer auf die andere hinweist, gleichsam erst mit der anderen zusammen die Idee der Hand erfüllt.

Die Einheit des Gesichts in sich wird durch das Aufsitzen des Kopfes auf dem Halse verstärkt, das ihm dem Körper gegenüber eine halbinselartige Stellung gibt und ihn gleichsam auf sich allein anweist; im gleichen Sinne wirkt ersichtlich die Verhüllung des Körpers bis zum Halse hinauf.

Nun hat eine Einheit immer erst in dem Maße Sinn und Bedeutung, in dem sie eine Vielheit sich gegenüber hat, in deren Zusammenfassung sie eben besteht. Es gibt aber innerhalb der anschaulichen Welt kein Gebilde, das eine so große Mannigfaltigkeit an Formen und Flächen in eine so unbedingte Einheit des Sinnes zusammenfließen ließe, wie das menschliche Gesicht.

Das Ideal menschlichen Zusammenwirkens: dass die äußerste Individualisierung der Elemente in eine äußerste Einheit eingehe, die, aus den Elementen freilich bestehend, dennoch jenseits jedes einzelnen von ihnen und nur in ihrem Zusammenwirken liegt - diese fundamentalste Formel des Lebens hat im Menschenantlitz ihre vollendetste Wirklichkeit innerhalb des Anschaulichen gewonnen.

Und wie man als den Geist einer Gesellschaft eben den Inhalt solcher Wechselwirkung bezeichnet, die über den Einzelnen, aber doch nicht über die Einzelnen hinausreicht, mehr als die Summe dieser, aber doch ihr Produkt - so ist die Seele, die hinter den Gesichtszügen und doch in ihnen anschaubar wohnt, eben die Wechselwirkung, das Aufeinanderhinweisen der einzelnen Züge.

Rein formal angesehen, wäre das Gesicht mit jener Vielheit und Buntheit seiner Bestandteile, Formen und Farben eigentlich etwas ganz Abstruses und ästhetisch Unerträgliches, wenn diese Mannigfaltigkeit nicht zugleich jene vollkommene Einheit wäre.

Um diese nun ästhetisch wirksam und genießbar zu machen, ist wesentlich, dass der räumliche Zusammenhang der Elemente des Gesichts nur in sehr engen Grenzen verschiebbar ist. jede Einzelgestaltung bedarf zum ästhetischen Effekt des Zusammennehmens, Zusammenhaltens ihrer Teile; alles Abspreizen und Auseinandersperren der Gliedmaßen ist hässlich, weil es die Verbindung mit dem Zentrum der Erscheinung, also die anschauliche Herrschaft des Geistes über den Umkreis unseres Wesens unterbricht oder abschwächt.

Die weit ausladenden Gebärden der Barockfiguren, bei denen die Glieder in Gefahr des Abbrechens scheinen, sind deshalb so widrig, weil sie das eigentlich Menschliche: das unbedingte Befasstsein jeder Einzelheit unter die Macht des zentralen Ich, desavouieren.

Das Gefüge des Gesichts macht solche Zentrifugalität, d. h. Entgeistigung, von vornherein fast unmöglich.

Wo sie einigermaßen stattfindet, beim Aufsperren des Mundes und dem Aufreißen der Augen, ist sie nicht nur ganz besonders unästhetisch, sondern gerade diese beiden Bewegungen sind, wie nun begreiflich ist, der Ausdruck des »Entgeistertseins«, der seelischen Lähmung, des momentanen Verlustes der geistigen Herrschaft über uns selbst.
Ebenso verstärkt es den Eindruck der Geistigkeit, dass das Gesicht weniger als die übrigen Gliedmaßen den Einfluss der Schwere zeigt.

Die menschliche Erscheinung ist der Schauplatz, auf dem seelisch-physiologische Impulse mit der physikalischen Schwere ringen, und die Arten, diesen Kampf zu führen und in jedem Augenblick neu zu entscheiden, ist für den Stil bestimmend, in dem der Einzelne und die Typen sich darstellen.

Indem dieses bloß körperliche Lasten innerhalb des Gesichts überhaupt nicht bemerklich überwunden zu werden braucht, verstärkt sich die Geistigkeit seines Eindrucks.

Auch hier sind die Andeutungen des Gegenteils: die geschlossenen Augen, der auf die Brust sinkende Kopf, die hängenden Lippen, die schlaffe, nur noch der Schwere folgende Muskulatur - zugleich die Symptome herabgesetzten geistigen Lebens.

Nun ist aber der Mensch nicht nur Träger des Geistes, wie ein Buch, in dem sich geistige Inhalte wie in einem an sich indifferenten Gefäß zusammenfinden: sondern seine Geistigkeit hat die Form der Individualität.

Dass wir das Gesicht als das Symbol nicht nur des Geistes, sondern seiner als einer unverwechselbaren Persönlichkeit empfinden, das ist durch die Verhüllung des Leibes, und also besonders seit dem Christentum, außerordentlich begünstigt worden.

Das Gesicht war der Erbe des Leibes, der in dem Maß, in dem Unbekleidetheit herrscht, sicher an dem Ausdruck der Individualität teil hat.

Allein seine Fähigkeit in dieser Hinsicht weicht von der des Gesichts doch wohl in folgendem ab.

Zunächst unterscheiden sich die Körper für das dafür geschärfte Auge zwar ebenso wie die Gesichter; allein sie deuten diese Verschiedenheit nicht, wie es das Antlitz tut.

Freilich ist die bestimmte geistige Persönlichkeit mit dem bestimmten unverwechselbaren Leibe verbunden, an ihm jederzeit zu identifizieren; allein was es für eine Persönlichkeit ist, das kann unter keinen Umständen er, sondern nur ihr Antlitz erzählen.

Und ferner: der Körper kann seelische Vorgänge allerdings durch seine Bewegungen ausdrücken, vielleicht ebenso gut wie das Gesicht.

Allein nur in diesem gerinnen sie zu festen, die Seele ein für allemal offenbarenden Gestaltungen.

Die fließende Schönheit, die wir Anmut nennen, muss sich in der Bewegung der Hand, in der Neigung des Oberkörpers, in der Leichtigkeit des Schrittes jedes Mal von neuem erzeugen, sie hinterlässt keine dauernde, die individuelle Bewegung in sich kristallisierende Form.

Im Gesicht aber prägen die Erregungen, die für das Individuum typisch sind. Hass oder Ängstlichkeit, sanftmütiges Lächeln oder unruhiges Erspähen des Vorteils und unzählige andere -bleibende Züge aus, der Ausdruck in der Bewegung lagert sich nur hier als Ausdruck des bleibenden Charakters ab.

Durch diese eigentümliche Bildsamkeit wird allein das Gesicht gleichsam zum geometrischen Ort der inneren Persönlichkeit, soweit sie anschaubar ist, und auch insofern ist das Christentum, dessen Verhüllungstendenzen die Erscheinung des Menschen durch sein Gesicht allein vertreten ließen, zur Schule des Individualitätsbewusstseins geworden.

Neben diesen formalen Mitteln, die Individualität ästhetisch darzustellen, besitzt das Gesicht andere, die ihm im Sinne des entgegengesetzten Prinzips dienen.

Indem das Gesicht aus zwei untereinander gleichen Hälften besteht, kommt ein Moment innerer Ruhe und Ausgeglichenheit hinein, das die Erregtheit und Zuspitzung rein individueller Gestaltung mildert.

Jede Hälfte ist für die andere - gerade weil sie durch die verschiedene Profilierung und Beleuchtung sich nicht ganz gleich darzustellen pflegen - Vorbereitung oder Abklingen, die Unvergleichbarkeit der individuellen Züge findet ihr Gegenstück, ihre Balancierung in der unbedingten Vergleichbarkeit jener Zweiheit.

Wie alle Symmetrie, ist auch die der Gesichtszüge an sich eine anti-individualistische Form.

Indem in dem symmetrischen Gebilde jeder Teil wechselseitig aus dem anderen erschließbar ist, weisen sie auf ein höheres, beide gemeinsam beherrschendes Prinzip hin: zu symmetrischer Gestaltung strebt der Rationalismus auf allen Gebieten, während die Individualität immer etwas Irrationales, jedem vorbestimmenden Prinzip sich Entziehendes hat.
Deshalb ist die Plastik, die die Gesichtshälften symmetrisch bildet, auf einen mehr generellen, typischen, der letzten individuellen Differenzierung sich entziehenden Stil angewiesen, während die Malerei durch die Verschiedenheit in der unmittelbaren Erscheinung der Gesichtshälften - wie die Profilstellungen und die Licht- und Schattenverhältnisse sie gestatten - von vornherein ihr individualistischeres Wesen zeigt.

Das Gesicht ist die merkwürdigste ästhetische Synthese der formalen Prinzipien der Symmetrie und der Individualisierung: als Ganzes die letztere verwirklichend, tut es dies in der Form der ersteren, die die Beziehungen seiner Teile beherrscht.

Endlich gibt noch das folgende formale, schon oben berührte Verhältnis dem Gesichte seinen ästhetischen Rang.

Bei allen Objekten, die entweder in sich wandelbar sind oder in vielen einander ähnlichen Exemplaren vorkommen, entscheidet es viel von ihrem ästhetischen Charakter, wie umfassend eine Änderung ihrer Teile sein muss, damit eine Änderung ihres Gesamteindrucks resultiere.

Es gibt auch hier eine Art Ideal der Kraftersparnis: ein Gegenstand wird prinzipiell um so mehr ästhetisch wirksam oder verwendbar sein, je lebhafter er als Ganzer auf die Modifikation eines kleinsten Elementes reagiert.

Denn dies zeigt die Feinheit und Stärke im Zusammenhang seiner Teile, seine innere Logik, die gleichsam aus jeder Verschiebung in einer Prämisse unausweichlich eine solche des Schlusssatzes folgen lässt.

Wenn die ästhetische Betrachtung und Gestaltung die Gleichgültigkeit der Dinge aufhebt, die ihrem bloß theoretischen Existenzbild eigen ist, so werden solche Objekte ihr am weitesten entgegenkommen, in denen die gegenseitige Gleichgültigkeit ihrer Elemente ganz aufgehoben ist und jedes Schicksal jedes Einzelnen die Gesamtheit der Anderen bestimmt.

Tatsächlich löst das Gesicht am vollständigsten die Aufgabe, mit einem Minimum von Veränderung im Einzelnen ein Maximum von Veränderung des Gesamtausdruckes zu erzeugen.

Für das Problem aller Kunst: die Formelemente der Dinge durch einander verständlich zu machen, das Anschauliche durch seinen Zusammenhang mit dem Anschaulichen zu interpretieren - erscheint nichts prädestinierter als das Gesicht, in dem die Bestimmtheit jedes Zuges mit der Bestimmtheit jedes anderen, d. h. des Ganzen, solidarisch ist.

Ursache und Folge hiervon ist die ungeheure Beweglichkeit des Gesichts, die ja, absolut genommen, nur über sehr geringfügige Lageverschiebungen verfügt, aber durch den Einfluss jeder einzelnen auf den Gesamthabitus des Gesichts gleichsam den Eindruck potenzierter Veränderungen erregt.

Es ist, als wäre ein Maximum von Bewegungen auch in seinem Ruhezustand investiert, oder als wäre dieses der unausgedehnte Moment, auf den unzählige Bewegungen hinzielten, von dem unzählige ausgehen werden.
Den Gipfel dieses äußersten Bewegungsaffektes bei geringster eigener Bewegung erreicht das Auge.

Für das malerische Kunstwerk im besonderen wirkt das Auge nicht nur in der durch seine latente Beweglichkeit vermittelten Beziehung zu der Gesamtheit der Züge, sondern auch in der Bedeutung, die der Blick der dargestellten Personen für die Interpretation und Gliederung des Raumes innerhalb des Bildes hat.

Es gibt nichts, was, so unbedingt an seinem Platz verweilend, sich so über ihn hinauszuerstrecken scheint, wie das Auge: es bohrt sich ein, es flieht zurück, es umkreist einen Raum, es irrt umher, es greift wie hinter den begehrten Gegenstand und zieht ihn an sich.

Es bedürfte besonderer Untersuchung, wie die Künstler die Richtung, die Intensität, die ganze Formbestimmtheit des Blickes verwenden, um den Raum des Bildes einzuteilen und verständlich zu machen.

Während sich im Auge die Leistung des Gesichts, die Seele zu spiegeln, aufgipfelt, vollbringt es so zugleich die feinste, rein formale Leistung in dem Deuten der bloßen Erscheinung, das von keinem Zurückgehen auf die unanschauliche Geistigkeit hinter der Erscheinung wissen darf.

Aber eben damit gibt es, wie das Gesicht überhaupt, die Ahnung, ja das Pfand dafür, dass die vollendet gelösten künstlerischen Probleme der reinen Anschaulichkeit, des reinen sinnlichen Bildes der Dinge zugleich die Lösung der anderen bedeuten, die sich zwischen der Seele und der Erscheinung, als der Verhüllung und der Enthüllung jener, spannen.

ex: Der Lotse. Hamburgische Wochenschrift für deutsche Kultur. 1. Jg. 2. Band (Heft 35 vom 1. Juni 1901), S. 280-284 (Hamburg).

Hannah Arendt: The Private Realm: Property

It is with respect to this multiple significance of the public realm that the term "private", in its original pricative sense, has no meaning. To live an entirely private life means above all to be deprived of things essential to a truly human life: to be deprived of the reality that comes from being seen and heard by others, to be deprived of an " objective" relationship with them through the intermediary of a common world of things, to be deprived of the possibility of archieving something more permanent than life itself. The privation of privacy lies in the absence of others; as far as they are concerned, private man does not appear, and therefore it is as though he did not exist. Whatever he does remains without significance and consequence to others, ad what matters to him is without interest to other people.

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Jacques Rancière: The Future of the Image

Jacques Rancière suggested two potentialities of images: the image as a ‘raw, material presence’ or ‘pure blocs of visibility’ and ‘the image as discourse encoding a history’. Such duplicity defines specific regimes of ‘imageness’: ‘a particular regime of articulation between the visible and the sayable’. Their relations are constantly redistributed and by no means limited to the realm of the visual or the world of pictorial representation.

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James George Frazer: The Perils of the Soul

A SHADOW, A REFLECTION, A BREATH, OR WHAT? James George Frazer has operated as the chief ideologists of soul-theft. In 1887 the British anthropologist mailed a questionnaire to missionaries, doctors and colonial administrators all over the globe asking amongst other things whether the soul would resemble “a shadow, a reflection, a breath, or what?” From the responses Frazer, who never did fieldwork but instead spent his life working in libraries, has compiled the twelve volumes of “The Golden Bough: A Study in Magic and Religion”. In a chapter devoted to the “perils of the soul” he concludes: “As with shadows and reflections, so with portraits; they are often believed to contain the soul of the person portrayed. People who hold this belief are naturally loth to have their likeness taken; for if the portrait is the soul, or at least a vital part of the person portrayed, whoever possesses the portrait will be able to exercise a fatal influence over the original of it.”
Find the whole chapter in: The Golden Bough

Jane Gaines: Photography Surprises the Law

CHAPTER 2 from: Contested Cultures

Photography "Surprises" the Law
The PORTRAIT OF Oscar Wider

by Jane Gaines

Oscar Wider The Picture of Dorian Gray ( 1884), often considered a discussion of the differences between painting and literature, is not that at all. It is really a metaphor for photography. But not because the author, as his biographer Richard Ellmann tells us, was prone to "brood  ing" about self-portraits and images in the period of his life before he wrote the short novel. 1 The novel is a metaphor for photography because, to put it bluntly, I choose to use it that way. My case, then, will rest entirely upon the utility of that metaphor, but also on the fortuity of historical circumstances. For as it happens, the very year the book was published, the photographic portrait of Oscar Wider became the object of a copyright infringement suit heard before the U.S. Supreme Court.

I am not going to imply, as is often done, that the author of The Picture of Dorian Gray had an early insight into the issues that I will raise. If he seems to have had any insight into those theoretical developments, it is merely because as a critic I am in a position to make it appear as though he had anticipated contemporary theories of representation. In reality, of course, he could not have foreseen the following interpretation. From what I have read about him (which is not the same as what I truly know about him) it would seem that my discussion is in the spirit of Oscar Wilde; but the possibility of his approval of my project finally doesn't matter. Another author might have served as well as an example, although if I am successful, my reader will disagree.

There are, as I see it, four ways in which the narrative of Dorian Gray works to elucidate problems posed by the invention of photography. Two of these are fairly predictable in their dramatization of the relationship between the painting and its object, suggesting as they do an analogy between photographic and painted portraiture. But the second two issues raised by the metaphor are less obvious routes to my main concern in this chapter: authorial originality as a claim to ownership in a work. How did this claim come to have viability in the face of the other claims historically asserted against it? And, at what expense has authorship as the basis for ownership been maintained, if it has been maintained at all?

Before addressing these questions, I want to show how this narrative is a parable about the perverse relationship between the photograph, the photographed, and the photographer, that love-hate triangle in Dorian Gray that ends in the death of all three. In the narrative, the youth Dorian (the subject of the portrait) changes places with the painting, which physically ages while his body remains as youthful as it was when Basil Hallwood painted his likeness. While the living painting has a soul, the static Dorian is soulless. We have in Dorian, then, the much-discussed phenomenon of photographic preservation, the photograph's awe-inspiring capacity to "mummify" the body, as André Bazin puts it, "to snatch it from the flow of time, to stow it away. . . in the hold of life." 2 In the nineteenth century, this preservative capacity of photographic representation was even understood as a triumph of mortal life over the certainty of bodily decay. In Dorian Gray, however, we have the fleshly mortification and decay of the representation and the preservation, instead, of the body itself. In other words, in this story, the representation and its object, so easily confused in the tradition of aesthetic realism, seem to have changed places. Perhaps they are even the same thing. In Dorian Gray we have an illustration of Bazin's "mummy complex," but in reverse. And we find as well its companion formation, what Bazin calls the "resemblance complex." 3 For Hallwood's portrait of Dorian embodies the highest aspirations of representational art: to achieve lifelike resemblance. The novel imagines the logical conclusion of those aspirations when the portrait that resembles its subject actually becomes that subject. For Hallwood, the portrait reveals the truth of the soul of its subject ( Dorian); it is "the real Dorian." 4 The live model thus becomes the photographic "work" fixed in time while the representational image hanging on the wall becomes the living being.

The exchange of places between the body and its image raises questions of preservation and resemblance. But it is the revelation of the self in the work that opens up the main considerations of this chapter. First, what is the origin of the notion that a person, whether author or subject of the work, is "revealed" in that representation? And second, how is the epistemological claim that a personality is "revealed" in the work then translated into the legal claim of ownership in the work? How do we find the author in the photographic work in order to establish that he, rather than the machine, created the photograph itself? The famous preface to The Picture of Dorain Gray states the problem for us in inverted form: "To reveal art and conceal the artist is art's aim" (p. 7).

Dorian Gray reminds us that a work of portraiture can reveal as much or more about the subject of the portrait as it does about the artist-creator. (It is Dorian Gray, not Basil Hallwood, whose soul is illuminated, exposed, and displayed on the canvas.) And yet, the narrative suggests as well that Dorian the monster is the expression of Hallwood's personality. If that is the case, both Dorians (the living representation and the lifelike portrait) are Hallwood's original conception, not only given visible form but in fact made flesh. It is the artist's soul, expressed through the work, that is laid bare. But is this expression of the artist's soul displayed in the living portrait, or in the soulless, photographic Dorian who eventually murders the artist and stabs the living portrait? Since the portrait and its subject are now one and the same, the soulless Dorian dies and the image is restored to lifelikeness-locked-in-time. In Dorian Gray, then, we find a metaphor for the shifting relationship between the photographed, the photographer, and the photograph, a relationship that illustrates the problem of the attribution of creativity. The "soul," or "personality," which inheres in its creation, rather than residing in any one of the three positions, is passed among them, referred to three possible points of origin.

From a contemporary point of view, we may be quite comfortable with this circularity, which constantly shifts the point of origin (as well as the blame) of meaning from one term to another. The circuit is shorted, however, when the question of ownership is introduced. When Lord Henry Wotten asks Hallwood if he will sell the image of Dorian to him, the portraitist explains that it is not his to sell; it is Dorian's property (pp. 35-36). Since no monetary exchange has taken place between the artist and the subject of the portrait, the issue of ownership seems to be decided on the basis of the congruence between Dorian and his image. Or, the physical likeness itself stakes out a property claim by means of its self-evidence. Shouldn't the subject portrayed have property in the one thing he indisputably owns, that is, property in himself? At the same time, it can be argued that the artist Hallwood himself is the source of the work, the originator of the conception. For aesthetic theory, the question of ownership dramatized in Dorian Gray is an interesting ambiguity. But for legal doctrine it is an ambiguity that must be resolved; intellectual property law must know whether or not there is personality in the work. And yet, as we will see, the property right question historically took the answer it wanted from aesthetic debates, while at the same time it went its own way, under pressure from social, economic, and technological factors.

To explain how it was that aesthetic theory and Anglo-American intellectual property doctrine, once entwined, came to part company (while still seeming to be allied), I need to consider the other possibilities that might have provided a basis for ownership in the image. As I see it, there were other contenders for the coveted position of the origin of the photographic work. These other claimants were nature (the source of light), convention (other works), the photographic apparatus, and the subject photographed. The invention of photography, as Bernard Edelman has shown, took French law by surprise, and during the ensuing period of disequilibrium, French courts debated the ways of establishing ownership in the image. How was it, then, that the other contenders were dismissed one by one in favor of the photographer-artist?

The Law "Seized" by Photography

In his introduction to the English edition of Edelman book Le droit saisi par le photographie, Paul Hirst says that the original title contains a pun, suggesting that the law was "seized" and "caught by" new technologies: photography and cinema. 5 In legal terms, saisi also refers to an attachment of goods or a seizure of money owed to a creditor. 6 But although this sense of the tables turned on the law has its appeal, there are even more provocative ways of looking at the title, given that the verb saisir also means "to perceive," so that we get the impression that the law is seen or grasped through photography. 7 But finally, if we consider the figurative meaning of saisir, it has to do with shocking or startling. As Edelman himself frames this, "The eruption of modern techniques of the (re)production of the real -- photographic apparatuses, cameras -- surprises the law in the quietude of its categories."8Le droit saisi suggests the lethargy, unpreparedness, and unresponsiveness of the French legal system, but it also carries some sense of the way this technological innovation jolted a social institution, catching it off guard. The new technologies did not produce a communications "revolution" in any sense, but they did pose problems that required institutional adjustments without which defects in the ideological mortar would begin to show. 9

The law does not easily accommodate such challenges; there is no better illustration of this than the attempt of nineteenth-century French law to decide whether or not the photograph was the artistic creation of the photographer. As Edelman describes it, when French law was first asked whether the photographer could be afforded the same protection for his work as a painter was for his, the courts balked. As Edelman puts it, "The law is first surprised by the question and its first answer is in 'resistance.' " For French law, the crucial question was whether or not the mechanical product could be said to have anything of "Man" in it at all. An authored work (it was argued) is imbued with something of the human soul, but a machine-produced work is completely "soulless."10

No sooner had the French courts issued this dictum than they began to reverse it. This bald-faced contravention is dramatized in the statements by French minister Alphonse Lamartine in the 1840s: "It is because of the servility of photography that I am fundamentally contemptuous of this chance invention which will never be an art but which plagiarises nature by means of optics. Is the reflection of a glass on paper an art? No, it is a sunbeam caught in the instant by a manoeuvre. But where is the conception of man? Where is the choice? In the crystal, perhaps. But one thing for sure, it is not in Man."11 But this same minister who saw photographic reproduction as "plagiarising nature" would later declare photography to be "better than art; it is a solar phenomenon in which the artist collaborates with the sun."12 What had happened? As it became clearer between the middle and the end of the nineteenth century that many thousands of French people made a living by means of photographic technologies and that France exported photographic images, protection of the product against infringement came to seem essential. As Edelman explains, "The soulless photographer will be set up as an artist and the film-maker as a creator, since the relations of production will demand it".13

Crucial to Edelman's theory is the idea that in order for the law to protect the photographic work, the photographer (the creative subject who had disappeared into the machine), had to be reintroduced into the equation; a soul had to be found in the mechanical act, the "soulless labor" of operating a camera. The subject (and here all of the grand potential of humanism's "Man" is unfolded) "invests" the photograph with something of himself, with the combination of humanness and particularity that we have come to call the "original conception." In this original conception, the creative subject and his work, intertwined as they are, become "indivisible." 14 Noting the way in which the landscape scene before the camera becomes an original work of art, Edelman asserts, "In order to 'intellectually' appropriate what belongs to everyone, I must not reproduce it, for then I shall do no more than expose what belongs to everyone, but I must produce it." 15 Here we have made a quantum leap in the same click of the shutter. As Edelman's critique testifies, what was simply a machine act of retrieval and duplication ( Lamartine's "plagiarism") of the real world before the camera suddenly becomes an original production of that real world. As the creative subject is brought to bear on the object before the lens, a a wholly new thing is produced from the merger of creative subject and object. And this new thing is the artistic or intellectual property.

And yet, as Edelman argues, in order for the legal subject to claim protection for this new property he had produced, the face and body of the work had to evidence a mark that, although invisible, could be recognized in law. And so it was that around 1862, the French courts translated the expression of the creative soul into the more serviceable concept of the "imprint of personality," a legal means by which the work could be seen as something indelibly etched with this sign of its author. 16 But shouldn't we be suspicious of the declaration that something is there in the photographic product that was not there before? How is it that the photographer could be suddenly transformed from a mindless mechanic into an artist and a creator, even a genius? And how can we account for the fact that the same "rote movement" -- the click of the shutter -- is now elevated to the status of the stroke of the pen or the brush? We may be credulous, but the French courts, apparently, were not. So Edelman's account reminds us, new technologies may "surprise" old categories, but only to be reformed according to existing conceptions of the world. Science and engineering may produce technologies that outstrip human capabilities, but these strange inventions are soon reconceived -- domesticated and humanized -- as they are put to use.

This theme has been developed in contemporary film theory's critique of the way in which technological developments have been historically claimed for an idealism that seems incompatible with purely mechanical functions. First advanced by French film theorists in the early seventies, and coincident with increasing interest in the work of Louis Althusser, this critique began with a description of how the camera itself was historically built to reproduce an aesthetic perspective based on the single eye of humanism's man. Much of this critique derived from an emerging French poststructuralism, which argued that the humanist project had been reinforced by linking it with technological advances. For these critics, the early film theorist André Bazin was said to have claimed each new technological change in cinema as confirmation of an idealist metaphysic -- as evidence of a divine plan in the "natural" world that could finally be replicated in every detail by science. 17

For contemporary film theory, however, technological change is no longer viewed as the forward movement of bourgeois progress, but rather as a series of junctures at which new technologies suggest ways to construct the world anew. These technologies are not employed to transformative ends but are instead harnessed to existing conceptions. Consider how the contemporary French critique might reread the late-nineteenthcentury prehistory of cinema and the inventions of Eadweard Muybridge and Etienne Jules Marey. After the camera's original challenge to the visible world as "seen" by the "human eye" (that supremely ideological organ), the motion picture camera ceased to be an instrument for the analysis of movement (through its elongation or abbreviation). Although it held the potential for teaching us to see the natural world a different way, it became instead an instrument for representing the time and space continuum as it was believed to be. Rather than challenging "the real" as it was already understood, the camera ended up confirming that real. 18

Edelman has looked at another such juncture: the period in European history that was faced with the question of whether photography was the creation of an artist or the product of a machine. French legal discourse was thrown into a state of confusion by the introduction of a technical novelty with unforeseen capabilities -- a machine that turned out copies of the natural world without the aid of the "human hand" or, for that matter, the human eye. Just as the eye would have to reassess its version of the visible, so the subject in law would have to reassess its part in the creation of mechanically produced culture. What relevance does Edelman's analysis of this momentary crisis in French legal history have for political analyses of U.S. entertainment law? To answer this question, we need to investigate the sources of Anglo-American copyright law.

U.S. Copyright Law and the Photograph

The 1709 Statute of Anne is often cited as the origin of the authorial right to the work in Anglo-American law, but in fact this right was an outgrowth of a completely different set of interests and national concerns, ones that were far removed from any concern about fairness to authors. The British statute aimed in part to dissolve the monopoly power of the Stationers Company (a kind of publishers guild holding publication rights exclusively), which effectively worked as state censorship. 19 What will be important to us here is the way in which the category of "author" -- which in the 1709 statute allowed the London publishers or booksellers to justify their publication rights -- is turned to the advantage of writers after the expiration of the twenty-one-year copyright extensions given to Stationers in the original statute. Not until the "Battle of the Booksellers," the controversy surrounding Donaldson v. Becket ( 1774), did the issues begin to undergo the realignment that somewhat resembles the now familiar Anglo-American authorial copyright.

In the U.S., the original 1790 copyright act passed by the First Congress gave protection to charts and maps and then books. In 1802 the act was amended to include the engraving or etching and what the amendment called "prints," and an 1831 amendment mentioned "copyright" for the first time in reference to musical compositions in their engraved or printed form. 20 In 1865 photographs and photographic negatives were officially added to the list of copyrightable forms -- a change that some legal sources have attributed to the Civil War popularity of Mathew Brady's photographic works. Five years later, drawings, paintings, chromolithographs, statues, and fine art models or designs were added. After 1870 we find a long hiatus: Between the significant 1909 Copyright Act revisions, which reorganized protection into eleven categories, and the complete revision in 1976, the U.S. Copyright Act was amended only twice. First, in 1912, it was expanded to cover moving pictures; and then, almost sixty years later, in direct response to an outbreak of sound tape piracy in the early seventies, "sound recording" was added as a copyrightable work. 21 U.S. intellectual property doctrine has written its own history within Supreme Court decisions, and it has historically characterized itself as responsive to technological change, particularly when that change translates into economic imperatives. Chief Justice Burger's statement for the majority in Goldstein v. California ( 1973), the preeminent position on state protection of "sound recording," summarized this self-characterization:

The history of federal copyright statutes indicates that the congressional determination to consider specific classes of writings is dependent not only on the character of the writing, but also on the commercial importance of the product to the national economy. As our technology has expanded the means available for creative activity and has provided economical means for reproducing manifestations of such activity, new areas of federal protection have been initiated. 22

This statement stands in conspicuous contrast to the arguments first advanced in French law on behalf of protecting a new technology. As we know from Edelman's critique, French law focused on the artist and not the industry, even if it worked to the eventual benefit of that industry. But the U.S. House Report on the proposed 1912 amendment that added motion picture photoplays to the copyrightable category was quite specific about the economic stakes in the extension of protection: "The money invested therein is so great and the property rights so valuable that the committee is of the opinion that the copyright laws ought to be amended as to give to them distinct and definite recognition and protection." 23 It may at first seem that the French example, so thoroughly critiqued by Edelman, could have no relevance for the treatment of mechanical and electronic technologies in U.S. copyright law. After all, as Paul Hirst reminds us in his commentary on Edelman, French copyright law is historically based on the author's right (le droit d'auteur), whereas the parallel Anglo-American law is based upon the right to copy. 24 And it could be argued as well that Anglo-American law, unlike its French counterpart, was not "surprised in the quietude of its categories" by the new photographic technologies, because Britain had already assimilated photography into its copyright law in 1862, three years before the U.S. followed suit. 25

We should note, however, that in the histories of both French and American intellectual property, the case of photography reveals the absolute importance of authorship as prerequisite to ownership. In French law, Edelman reminds us, the photographer had to "invest" the real with his personality; similarly, in American copyright law the human author had to put "something" of himself into the real in order to turn it into property. 26 In both cases, the investment of personality is the crucial authorial deposit that turns preexisting material and immaterial property into intellectual property. But once the author-subject, as I will call him, originates the work, his contribution is negated and his position evacuated. If the intervention of the author-subject is easier to see in French law, the evacuation of the author-subject is more pronounced in U.S. doctrine. While in nineteenth-century French law we find the legal subject first intervening in photographic production, in U.S. copyright law we see the legal author-subject gradually removed from the work.

My argument depends upon a reading of the U.S. Supreme Court decision in Burrow-Giles Lithographic Co. v. Sarony ( 1884), a case that has particular historical significance because of its challenge to the constitutionality of the 1865 Copyright Act amendment, which covered photography. Moreover, Burrow-Giles remains a definitive statement on "originality" in manually as well as mechanically produced work. In this case, we find the pattern of origination and evacuation that I mentioned above played out in detail: "originality" is elaborated as a defense of Sarony's photographic artistry at the same time that it is reduced to nothing more than a point of origin.

Others may argue that Burrow-Giles is a moot case as far as contemporary copyright practice is concerned. It was made redundant by Bleistein v. Donaldson Lithographic Co. ( 1903), a case that involved the copyrightability of circus posters produced by chromolithography and that declared reproductions of this kind to be protectable regardless of the degree of artistry expended in their production. The implication, of course, is that if all photographs and lithographs are copyrightable whether they are artistic works or not, then the more elaborate defense of Napoleon Sarony's artistry would seem to be superfluous to copyright law. A current edition of a basic text on intellectual property, for instance, tells us that Bleistein is more relevant to questions regarding the photograph than Burrow-Giles is:

At least since Burrow-Giles Lithographic Co. v. Sarony. . . photographs of real-life situations have been copyrightable. The justification for protection was that the photographer had invested his pictures with serious artistic consideration and creative effort. But after Bleistein, it is apparent that such a claim is unnecessary and that photographs are copyrightable not because of any artistic creative effort but simply because they are the work of "one man alone." 27

And yet the definition in Burrow-Giles of an author as an "originator," or "he to whom anything owes its origin," remains a valid characterization of what constitutes authorship in U.S. copyright law. Perhaps the most dramatic illustration of the definition of originality set forth in BurrowGiles is its application in Time Incorporated v. Bernard Geis Associates ( 1968), to which I will return in more detail. 28 Here the question of who owned the Super 8 mm footage of the Kennedy assassination rested not only upon seeing the hand of one amateur filmmaker pushing the button (after Bleistein's "one man alone") but upon the filmmaker's conferral of "originality" on the mechanical work by virtue of his intervention in the creative act as a legal subject. Commenting upon these conditions of "originality" in Time Inc. v. Geis, the authors of the intellectual property text to which I have been referring observe, "The combination of happenstance and fate that led to these films amplify [sic] the fact that originality is minimal indeed." 29 The requirement that there be maximum originality in the photographic work is also the minimum requirement -- that there be no originality at all.

Let me start with the maximum of originality. Of the hundreds of celebrity photographs reproduced illegally in the 1880s (that is, reprinted in disregard of the photographer's copyright), only one provides us with a full statement on authorship in mechanical works in American copyright law. The test case arose when New York photographer Napoleon Sarony filed suit for copyright infringement against Burrow-Giles Lithographic Company, charging it with producing 85,000 unauthorized copies of "Oscar Wider, No. 18," one of the twenty images the photographer took at a sitting in January 1882 (fig. 1). In April 1883, the Circuit Court of New York, Southern District, decided the case in Sarony's favor. 30

There is no doubt that the protection of industrially produced culture in the U.S. has its origins in the Turkish carpet that was arranged at the feet of Oscar Wider. And these origins can be traced as well to his curious lapdog pose, to the assumption of his own signature gesture (the fingers to the face), and to the way he holds the small book poised on his knee. Finally, they are in the whimsical arrangement of Wilde's legs thrust forward to display the silk stockings and shiny patent leather shoes tied with fancy bows. And they are in the shallow depth-of-field of the photograph, which produces a hazy, ethereal soft-focus space above his head. Here, the work and the author's description of his own process of conception fit hand in glove. And the U.S. Supreme Court, in accepting Sarony's description of authorial creation as a valid argument, reauthorized it as law. The court agreed with Sarony that the photograph of Oscar Wider was [a] useful, new, harmonious, characteristic, and graceful picture, and that the plaintiff made the same. . . entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wider in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by plaintiff, he produced the picture in suit. 31

The elaborated position on originality within this Supreme Court decision also trades upon connotations of aesthetic density because it analogizes "photography" with authors' "writings": "By writings in that clause is meant the literary productions of those authors, and congress very properly has declared these to include all forms of writings, printing, engravings, etc., by which the ideas in the mind of the author are given visible expression." 32 In extending the category of "writings" to lithography and printmaking, the court offered the photographic print legal protection. 33 But there is another legal analogy at work here, namely the French comparison of the photographer and the painter, both of whom may be creative subjects "arranging," "disposing," "suggesting," and "evoking representation." The American theorization of original artistry in the photograph, then, is the product of the convergence of at least three analogies: the written composition, the painted canvas, and the printed lithograph.

Against Sarony's argument in support of photography as an original work of authorship, Burrow-Giles Lithographic Company took the position that the photograph was not copyrightable because it was a purely mechanical operation. In a sense, this important challenge to the constitutionality of the 1865 amendment (which recognized the photograph as a "work of authorship") was a recapitulation of the French debates, but with this difference: The "merely mechanical" argument was deployed in the U.S. to dislodge the already-positioned subject, rather than to squeeze him out from the start. The lithographic company's argument, as restated by Justice Miller, echoed the early French debates:

But it is said that an engraving, a painting, a print, does embody the intellectual conception of its author, in which there is novelty, invention, originality. . . while a photograph is the mere mechanical reproduction of the physical features or outlines of some object, animate or inanimate, and involves no originality of thought or any novelty in the operation connected with its visible reproduction in the shape of a picture. 34

Was this argument, which effectively denied legal protection to the photograph, convincing in a suit for infringement, a suit heard, moreover, during a period that was a heyday for photographic piracy? How could the "merely mechanical" argument stand in light of the emergence of so many self-styled photographic artists in both both France and the U.S., of which Napoleon Sarony was only one of the more prominent examples?

Apparently it couldn't, because the Supreme Court did, in fact, produce a judgment in Sarony's favor. Burrow-Giles, however, has been considered somewhat problematic by legal commentators. Even though the court found sufficient evidence of Sarony's authorship to uphold the protection of photographs in which some degree of personality was invested, it did not take a position in regard to the production of what it termed "ordinary" photographs. The court declined to decide on this issue, and Justice Miller's statement discouraged any attempt to look to this decision for such authority. As for the legal status of the photograph produced by "merely mechanical" means, he said: "It is simply the manual operation, by the use of these instruments and preparations, of transferring to the plate the visible representation of some existing object, the accuracy of the representation being its highest merit. This may be true in regard to the ordinary production of a photograph, and that in such case a copyright is no protection. On the question as thus stated we decide nothing." 35 Burrow-Giles would in time be interpreted as a case that produced an equivocal statement on the copyrightability of the photograph. It could not provide a clear standard for all photographs -- that was not produced until the Copyright Act of 1909. As Judge Learned Hand later put it, the significance of the 1909 clarification was that it allowed protection of photographs "without regard to the degree of 'personality' which enters into them." 36

Burrow-Giles, as evidenced in its description of Sarony's work process, obviously contains the provision for the protection of works in which authorial "personality" is abundantly displayed. But it also provides for works invested with a zero "degree of personality," since it defines the author as nothing more than the point of origin of the work -- as "he to whom anything owes its origin; originator; maker; one who completes a work of science or literature." Later opinions, in fact, have tended to rely on Burrow-Giles not for its articulation of authorial "personality" but for its statement of the minimum requirement of originality in other "works of authorship," photographs notwithstanding. 37 What I am suggesting, in other words, is that the very theorization of the legal author-subject in the case of the photograph (the legal prototype for the mechanically produced work) is at the same time an important step in the gradual displacement of the author-subject from his secure position before the work. To put it another way, in U.S. intellectual property law, the intervention of the subject in the photographic work also marked the point of exclusion of the subject.

To provide a picture of what is at stake, it may be useful here to review the sweep of developments from 1709 to 1968, to which I have referred in this section. In the concluding chapters of Lyman Ray Patterson Copyright in Historical Perspective -- one of the few historical treatments of Anglo-American copyright law -- these developments are read in relation to contemporary concerns about the dangers of the monopoly vested in copyright. In Patterson's view, British and American courts during this period misunderstood the monopoly problem; in an attempt to curtail monopolies on the right to copy (in the interests of the public good), the courts limited the author's right. But, in fact, they should have limited the publishe's right, since in current practice publishers, not authors, are owners of copyrights. As Patterson explains it, the courts saw two interests, "author" and "public," when they should have considered a third: "publisher." 38 The contemporary situation that Patterson describes has come almost full circle, back to similar conditions in the eighteenth century when the publisher-monopolists invoked the author's-right provision of the Statute of Anne in an attempt to regain their hold on the rights they no longer held in perpetuity. 39 These rights, the publishers discovered, could be held with more security if they were attached to the "natural right" of the author who had sold the work to them. Patterson characterizes the eighteenth-century publishers' strategy as remarkable for its "transparency." 40 But what of the contemporary situation, in which the publisher-owner acquires the author's lifetime monopoly in the work in order to extend and fortify a right that might have otherwise been limited? What of the example of Time Inc. v. Geis, in which the publisher is able to claim a monopoly on the Super 8 mm footage of the Kennedy assassination by means of the authorial right of Abraham Zapruder? Patterson's history reveals a pattern of monopoly effected by using the author as a kind of pawn. But it also shows us a reversal of the outcome of the eighteenth-century battles. For copyright, as he points out, "instead of being a limited right in connection with a work for an unlimited period of time,. . . became an unlimited right for a limited period of time." 41 Patterson may be correct that the House of Lords as well as the booksellers used authors' rights (absent any authors themselves) to different ends, the former to dissolve and the latter to reconstitute monopoly rights. But Patterson takes this historical background in a predictable direction that negates the logic of his own research. He employs the historical findings that authors' rights were an invention on behalf of an argument for a proper authorial right in Anglo-American copyright law. 42 In this he anticipates the current movement on behalf of a restitution of the author-subject in American law on the model of the French droit moral ("moral right"). 43 I am willing to follow Patterson only until he uncovers the historically opportunistic uses of author's right. But what Patterson cannot answer is how the authorial creator can be used to construct a legal subjecthood with an attendant "natural right" to an end that does not benefit Patterson's own third interest, the "public."

Patterson's focus on the author's right obscures the historical construction of the legal subject who can have property in his person, a formation that predates and makes possible the construction of the author as owner of his writings. In Burrow-Giles, the case under discussion, the author's right obscures the contradictory evidence offered by the technology itself, the evidence that photography is mechanical. Authorship in the photograph is a requisite fiction. But then so is authorship in the literary work.

Origin and Originality: "One Man's Alone"

It is true that in intellectual property "originality" has a pragmatic charge. The concept is used to prevent competing claims to ownership in a work. Nevertheless, within the common law, conflicting claims have arisen because of the admitted ambiguity of "originality," and it is this ambiguity that I now want to investigate. 44 Although copyright law does maintain the distinction between the original and its copy, familiar from the criticism of fine art, legal doctrine recognizes many more total works as "original" and views many more kinds of products as "works of authorship." This is so, in part, because while aesthetic theory disparages copying, copyright law encourages copying at the same time that it polices it. It may appear, then, that we are not talking about the same concept, but what I want to show is that these two concepts of originality grow out of the same philosophical root: property in the person. The ambiguity of "originality" complained of by judges and legal commentators can be explained by the divergent histories of legal theory and aesthetic theory in the last two centuries. While the two "originalities" are still connected at the root, the apparent similarity that this produces in the two discourses has an ideological function: to mask the threat that each conception of originality poses to the opposite discourse.

The pressing question for us, of course, is why originality, which in 1884 was required in abundance (as the description above of Sarony's method attests), has become reduced more and more to the blunt fact of origin. To answer this question, I need to tell a somewhat longer story of how "originality" -- over "individuality," "uniqueness," "novelty," or "creativity" -- came to be the crucial determining concept in intellectual property, so that -- and again I cite the contemporary word on intellectual property -- "originality does not imply novelty; it only implies that the copyright claimant did not copy from someone else." 45 A kind of doubleness, in other words, evolved in the legal concept of originality: On the one hand, the law retained the connotations of artistic creativity and the ideal of the singular work; on the other hand, "creativity" came to refer simply to the work's point of origination, not to the unique, soul-invested nature of the work itself. Before we consider the precarious legal status of artistic "creativity" in the contemporary period, however, we need to examine how and under what circumstances the notion became crucial to assessments of how the work of culture is produced. What we will find is that the concept of authorial "creativity" has a long and varied history of appropriations and that its use as a means of legally securing property is only one of its more recent manifestations. From this perspective, the appearance of the "creative" subject in relation to the photographic act should have surprised no one, since this subject has appeared historically at so many other times in the service of so many different interests.

Long before the creative subject was ushered into the process of producing the photograph, this subject was inserted into the process of producing objects that had previously been the product of one or more artisans. It is true that the phenomenon of the singular artist who is fully responsible for the work as a whole is first visible in Renaissance Italy at the end of the fifteenth century. But the notion of "creation" in relation to art does not fully emerge until the eighteenth century -- and then with a vengeance, as a calculated strategy in opposition to industrial production. Raymond Williams reminds us that the idea of the "creative" artist emerged as the once divine capacity of creation became attributable to humans. And in the current century, Williams continues, "creativity" has become synonymous with innovative, original, and novel, but at the expense of undergoing some devaluation. 46 It is impossible to disregard the striking historical parallel between this linguistic devaluation and the delimitation of the legal concept of "originality."

The impossibility of ever reconciling the two poles of the original/copy dichotomy has become clear for aesthetic theory only in its recent postmodern frame of thought. 47 Historically, the showdown between the original and the copy has been staved off, first and most successfully by the Romantic movement, which attempted to ameliorate the deleterious effects of the industrial revolution. The Romantic view of art as transcendent and of the artist as a superior being evolved as a means of rescuing the artist's work from the market and from the hostile public for whom mass production might make the work available as it had never been before, but at the price of turning it into an industrial product. The Romantics countered the commodification of the work by elevating the artist, but, ironically, the artwork came to be seen as the product of creative genius in proportion to the loss of status of artists in general. 48 The strategy of the Romantics was to project the "humanness" of the creative subject (which they perceived to be under attack) onto the works themselves. As Williams describes it, this amounted to "an emphasis on the embodiment in art of certain human values, capacities, energies, which the development of society towards an industrial civilization was felt to be threatening or even destroying." 49 In short, cultural products were endowed with the same rare and unique qualities that their singular human creators were said to possess. And as the Romantic poets elevated themselves above other humans, they confirmed not only their own originality but also that of their creations, the better to separate those works from mass-produced products. 50 As we retrace this process, it is useful to recall that the Romantics' insertion of the subject into the work was an artificial one in its time. If poets were only servants of the divine who held a mirror up to nature, then the personal touch of the poet as individual creator could only be intrusive. The pre-Romantic concept of artistic work, as M. H. Abrams reminds us, allowed no space for individual vision, and it therefore left "limited theoretical room for the intrusion of personal traits into [the writer's] product." 51 For Abrams, the Romantic premium on the personality of the writer was a "strange innovation" when it appeared in the nineteenth century. 52

To see authorship in the work of art as "strange" is difficult today. The notion has become so thoroughly naturalized over the ensuing century as to engender a reverent metaphysics of the existence of the author in his product that would blind the appreciators to the evidence of anything else in the work, especially to the evidence that there is nothing actually in the work at all. As an antidote to a persistent but now exhausted Romanticism, we need to remind ourselves of an earlier era when a literary or fineart work was seen not as the product of a producer at all, but rather as transpersonal and in flux. 53 From a pre- and post-Romantic vantage, we can see that the analogy between the human author and the work is really a kind of anthropomorphism, one that begins to reveal the motives behind the Romantics' historical opportunism. For as they resisted commodification by projecting the personal traits of the author onto the work, the Romantics effected a reification of their own -- one through which "the difficulty of the market was not solved," as Williams puts it, "but cushioned, by an idealization." 54 The Romantics' idealization may have temporarily postponed the market restructuring of the work-author relation, but it did so only by legitimizing the same forces that the poets had opposed. It was only a matter of time before the author-subject came to encourage and facilitate mechanical copying.

The Author as Owner

I have already identified the early- eighteenth-century moment in Anglo-American copyright law when the author was introduced into the literary work as the basis of the right to copy. Technically, the author owned the copyright in the work, but because the bookseller/publisher functioned as proprietor, this fact of ownership remained submerged for three-quarters of the century. I now want to show how these two ends (authorship and ownership) came to be tied together, producing the preconditions for the new compatibility between the author and the market. Authorship and mass production, two strands originally separate, became bound together after the late-eighteenth-century "Battle of the Booksellers." It is here, at the outset of the industrial revolution, that I want to resume my historical overview.

In his recent essay on the history of the author as proprietor and the birth of the literary "work," Mark Rose provides a valuable critique of the arguments surrounding the 1774 hearings on literary property in the House of Lords as they took shape in the case of Donaldson v. Becket. 55 Rose reads these debates as a confluence of developments that made possible legal ownership and literary authorship as we know them today. At this early stage, often lost in later accounts, aesthetic and legal issues were so thoroughly intertwined as to seem indistinguishable: The aesthetic was marshaled in the service of the legal, and the legal applied in reverse to the aesthetic. Both issues were clearly wedded and, it would seem in retrospect, were by chance decided at once. The House of Lords ruled against the booksellers, who ironically were supporting the author's right to the fruits of his labor, the better to reinforce their own monopoly position at the time. In these debates, Rose argues, the author as proprietor became available to link up with the Romantics' theorization of the originality of the author's work, which was just emerging as a new idea at this time. One of the strains that Rose hears in these arguments around literary authorship is, as we might expect, the Lockean articulation of property as derived from the person, a concept that merges in these debates with the idea that the author's personality, his distinctive identity, is imprinted upon his work or expressed through his writing. Coming out of this meeting we have the now familiar combination: authorial property right, originality in the work, and right to copy or reproduce. 56

This meeting might be mistaken for an inevitability until we look closely at the first attempts to forge the connections among author's right, originality, and copyright that we now take so much for granted. Here, Rose shows us how this combination was produced by means of an almost imperceptible shift in rhetoric. In his 1774 pamphlet, Argument in Defence of Literary Property, Francis Hargrave starts with the problem of how one written composition is to be distinguished from another. In this context he reflects upon two related issues: first, the relationship between the author and the composition; and second, the determination of originality. About the authorial stamp on the composition, Hargrave says:

The subject of the property is a written composition; and that one written composition may be distinguished from another, is a truth too evident to be much argued upon. Every man has a mode of combining and expressing his ideas peculiar to himself. The same doctrines, the same opinions, never come from two persons, or even from the same person at different times, cloathed wholly in the same language. A strong resemblance of stile, of sentiment, of plan and disposition, will be frequently found; but there is such an infinite variety in the modes of thinking and writing, as well as in the extent and connection of ideas, as in the use and arrangement of words, that a literary work really original, like the human face, will always have some singularities, some lines, some features, to characterize it, and to fix and establish its identity. 57

What is remarkable about this passage, says Rose, is the way it subtly moves from describing the composition to describing the author -- from the property to the proprietor. 58 This shift from property to proprietor is most evident in the analogy between the literary work and the human face. Which is to say that a conflation of the work, the face, and the personality has produced what has been the ruling paradigm in arts criticism and Anglo-American intellectual property law for more than two centuries! We begin to see the shared root structure of the two discourses, but also the ascendance of the author over the work, which, in the end, is the category that loses out.

Rose finds an additional rhetorical sleight of hand in Hargrave's defense of property in literature. For it is not clear whether in 1774 "originality" refers only to the composition that is not someone else's (not a copy) or to the new Romantic sense of something wholly innovative and unique. 59 On the eve of the union between the author as individual and the Romantic notion of the authored work as individuated and unique, the two concepts still seem oddly paired. Hargrave's conflation of the individual author with the individual work produces the corollary that every literary composition is different because every author is. If we supplement this with the Lockean philosophy that man is the origin of property, then we have the basis for the Anglo-American copyright doctrine definition of authorship set forth in Burrow-Giles: All works originating from an individual are individual works of authorship.

In Hargrave's crude early statement, we see the construction of a tautology that has operated historically at the very heart of intellectual property law: All works of authorship are oniginal. 60 Why? Because they originate with authors. As Barthes describes the function of tautology, it is always a temporary "aphasia," which, like the "faint at the right moment," rescues us from having to make the explanation that is not forthcoming. 61 The interchangeable reference to authorship and origin, then, operates in intellectual property law like an automatic lapse, a memory blackout. The law has, in fact, forgotten, and must continue to forget, that before the writer had rights in his literary production, literary property and writer were separate and unbridgeable categories. The long-forgotten alternative, however, may be found in the position against which Hargrave was arguing, in the proposition that the work is "a set of ideas which have no bounds or marks whatever." 62

In this forgotten proposition, we find the corollary to poststructuralist theories that would come into vogue two hundred years later, theories that would take issue with the Romantic theorization of some works as more original than others. This, then, is where intellectual property doctrine and traditional literary theory each represent a potential undoing of the other. But the threat that literary authorship poses to copyright is only hypothetical. The return of the real author to the work does not mean the imposition of a test of freshness and complexity impossible for courts to administer. 63 Copyright doctrine poses a greater danger to traditional literary theory, since it negates the contradictory philosophical foundations of traditional literary theory. That is, if the individual author produces property in the work in the Lockean sense, then every act of production is an act of origination, every work is an original work, regardless of whether it is aesthetically unoriginal, banal, or, in some cases, imitative. Every individual person is also a potential "author" whose "writings" will be as "original" as those of a renowned or acclaimed literary figure.

As Paul Hirst remarks on the consequences of this structure in AngloAmerican copyright law: Companies coexist within the same framework of rights with individual subjects, football fixtures are defined in the same terms and enjoy the same rights as Finnegan's Wake. The law singularly fails to depend on the (supposed) attributes of individual subjects for the foundations of its provisions and persists in treating of legal subjects with indifference to any formal doctrine of subject. Football clubs and heroes of modernism are considered on the same terrain. 64

Copyright's minimal point of origin requirement, which considers light fixtures and belt buckles as "works of authorship," performs a critique of traditional theory's notion of authorial originality. 65 Copyright law is a great cultural leveler.

As this example indicates, the coexistence of the two overlapping concepts of "originality" is denied in legal discourse. And in traditional aesthetic theory the parallel contradiction -- what Rosalind Krauss calls art criticism's "originality/repetition dichotomy" -- is similarly accommodated by a kind of "repression." 66 But there is a difference. In high culture aesthetic discourse, the disruptive potential of copying is repressed. But in intellectual property discourse, the Romantic mythos of uniqueness is not repressed but rather persists, cropping up right where it is abolished. Here, then, is what I would say in answer to Hirst's lament about the equal treatment that copyright offers football clubs and heroes of modernism: We should not be surprised that Anglo-American intellectual property law is formally unaccommodating to the human subject bearing natural rights, because copyright doctrine is nothing more or less than a right to prohibit copying by others. Actual authors, in other words, are irrelevant to the operation of a copyright system.

But while maintaining this centuries-old right-to-copy structure, intellectual property, certainly after 1774, began to accommodate the coexistence of the old prohibition against copying and the newer Romantic conception of the authorial property. And this uneasy coexistence produced, in turn, what might be called the positive and negative sides of "originality." On the negative side, there is the definition of originality that is nothing more than not having copied. The point of origin, not to mention uniqueness, is not even relevant here. On the positive side is Justice Holmes's 1903 dictum in Bleistein v. Donaldson, the expectation that the work will contain some "irreducible" aspect of the author's personality. This positive definition of originality contains none other than the rationale for authorial ownership in the work based upon the analogy between the individuated human being and his writings. Only in Holmes's opinion it is the analogy between the person and his handwriting style that is advanced as an argument for property in the work: "The copy is the personal reaction of the individual upon nature. Personality always contains something unique. It expresses its singularity even in hand-writing, and a very modest grade of art has in it something irreducible, which is one man's alone." 67 This famous dictum is a curious restatement of the 1774 formulation that the author's right is based on his singularity, his separateness from other humans, and it is remarkable in two ways. First, in his phrase "one man's alone," Holmes gives us personality as a formula rather than as depth and complexity of character, and it is this formula that makes possible the apparently contradictory legal argument that a copy is an original work of authorship. Second, Justice Holmes's opinion, appropriately enough, is as mystifying as the Romantic concept of creativity itself; "something" in the work doesn't tell us what is to be found, and since the superfluity of creative artistry is stated in the negative ("irreducible"), we are given nothing specific to look for in the authorial product. 68 This irreducible something is the undissolved golden nugget of genius, and it is all that is left in intellectual property doctrine of Sarony's artistry. 69 If the concept of "originality" is ambiguous in intellectual property law, it is because, although the Romantic notion of authorial creation did provide part of the foundation of Anglo-American copyright law, some of its structures have dissolved. Other parts of the Romantics' unfinished project, however, remain undigested in the common law, producing the lumpy ambiguity of the doctrine of originality.

Where Is the Personality in the Work

With this background on the interrelationship of the two conceptions of originality in mind, I want to return to the problem that the photographic apparatus posed for French law. We have seen that in Anglo-American law, the literary author claimed proprietorship in the work by means of an analogy between the writer and the written composition. Almost a century later, in French law, the mechanical mediation in the photographic act put that kind of analogy between author and work in jeopardy. Let us return to Edelman's analysis of how the French courts put the subject into the photographic work in order to make him author of it. The French courts, Edelman says, used the mediation of technique to "invest" the subject in the real; photography was thus "wrested" from the machine by the concept of the "imprint of personality." 70 What Edelman means may be better understood if we consider what follows from the position that the subject does not intervene. If the personality is not in evidence in the photograph, the subject "disappears" into the machine, or "disintegrates" into the mechanical. 71 The threat of the machine, in other words, is the threat of the loss of the legal subject, who is not just relegated to the status of the mechanic but who is also totally missing in the creative act. (And is thus unable to provide the basis for protection.) The concept of "imprint of personality" restores the subject to the photographic work, but it does not tell us how it is that the soul found its way from the author through the apparatus and into the photograph. A somewhat closer consideration of the nineteenth-century French discourse around the protectability of the photograph reveals that to some degree the creative process had to be rethought in order to accommodate the photographer as author. And it is in this reformulation -- in which all phases of photographic production are subsumed under the rubric of "conception" -that "nature" and "the machine," those other contenders for authorial contribution, are written out of the process.

In conjunction with the record of Sarony's circuit-court-level trial hearing against Burrow-Giles Lithographic Company in 1883 (the year before the U.S. Supreme Court heard Burrow-Giles), the Federal Reporter published a summary of legal documents pertinent to the lower court decision. Among these documents is an English translation of the chapter on photography from Pouillet Propriété Littéraire et Artistique, which, the Federal Reporter explains, is reprinted in this context because the issues relevant to copyright in the photograph had been so widely discussed in France. 72 Pouillet analyzes the positions relevant to the artistic status of photography that were advanced within French legal theory after around 1860. Since, under the French law of 1793, a photograph had to be established as an artistic work in order for it to claim protection along with the painting, the metaphor of painting shapes this discourse. And we hear it faintly echoed in Napoleon Sarony's claim.

In the position for the protection of authorial rights in the photograph, Pouillet's own position, we find that the analogy between the author and the work becomes so submerged that it is, in fact, assumed. It enables the "no two men" formulation (later Holmes's "one man's alone"), which makes it unnecessary to find individuality or personality in the work, simply because individuality in the work is guaranteed by the notion of the individual as subject: "We have said many times already that the author's right was derived from the creation which gives to the work its character of individuality. Is this individuality lacking here? Is it not certain that two photographers, reproducing each for himself, the same scene or the same model, will obtain two pictures capable of being distinguished?" 73 But the problem with extending the "no two men" test (which worked for ownership in the written composition) to the production of the photograph is that two different men may very well produce identical photographs using the same apparatus identically positioned. What is more, many different individuals can produce the same photographs from the same negative. In order to make the photographer an author, then, the redefinition of the artistic process had to emphasize the prephotographic (and invisible) stage of photographic production. Photographic artistry, then, had to be rethought as something having less and less to do with the mechanical device, that black hole of authorship where all men are undifferentiated mechanics. As the analogy between the photograph and the painting began to break down between 1793 and 1883, the mechanical part of photography had to be circumvented. And once that happened, all aspects of photographic production merged: thinking, making, and end product became one. "Is it not the conception, however expressed, which constitutes the artistic work?" asks Pouillet. 74

This merger of the material and the immaterial in the notion of "conception" is part of an important ideological rescue mission in the evolution of intellectual property doctrine. For in this doctrine, the immaterial will have to be recognized as the material. As Edelman discusses this operation, it is performed by a juridical fiction, a form of what Marx and Engels identify as the illusion that the law and not the relations of production is the basis of real property. 75 According to Edelman, here is what happens:

Through its own functioning this fiction permits the transition from the invisible -- "intelligence," "creation," "genius," -- to the visible -real estate, the "tangible," the "true," the transition from the immaterial to the material. The functioning of the fiction denounces its role. It is a matter of giving to the invisible -- the thought of man -- the character of the visible -- private property. People knew already, without knowing it, even though it was impossible for them not to know, that the invisible was what is the visible, since it presents itself in the visible. Such, then, is the effectivity of the fiction. 76

To put it another way, the notion of artistic conception rewrites the process of origination to make the artistic act interchangeable with the only means through which we can know it: the thing produced. Physical acts and mental acts intermingle and become indistinguishable, and labor of mind and labor of hand become equally material. This is what we find in the court's judgment in Burrow-Giles, in which Sarony is said to have "given visible form" to "his own original mental conception" by "posing" Oscar Wider. But well before the U.S. Supreme Court case, Pouillet describes picture-taking as a process in which mental and physical activity are undifferentiated: "The photographer conceives his work; he arranges the accessories and play of light; he arranges the distance of his instrument according as he wants, in the reproduction, either distinctness or size; thus, also, he obtains this or that effect of perspective. After that, what matters the rapidity, the perfection, the fidelity of the instrument with which he executes what he has conceived, arranged, created?" 77 (emphasis mine) In support of his position, Pouillet quotes a complementary argument advanced by the legal figure Imperial Advocate Bachelier, which stresses that the means of obtaining the picture do not matter. (After all, Advocate Bachelier argues, even when the mechanical diagraph or pantograph devices were used to aid illustration, the resulting drawing was a protectable work of art.) Shades of Hegel (in which the human will produces property), all that is required is an "exercise of the will," as seen in that smallest of gestures. And this small gesture of will (which went so far to advance the cause of ownership of the image) is none other than "choice." So that in the photographer's "choice" of subject or time of day to shoot, in Sarony's "selecting," "arranging," "disposing," and "evoking," we have the human investment of labor in the thing, the private property-producing gesture. 78

The arguments both for and against authorship in the photograph depend upon the hand-mind duality. But while the former dissolves the role of the hand into that of the head, the latter separates the two in time. The argument against authorship in the photograph stood its ground against the dissolution of manual and mental labor by dividing the photographic act into two steps. Pouillet cites Thomas, Imperial Advocate at the time, as the primary exponent of the position against authorship in the photograph. Although Thomas did not deny that the photographer conceptualized, he argued that this mental labor took place before the actual production of the photograph: "The law of 1793 does not protect the labor of thought previous to execution; not that kind of invention which is the work in the mind alone, but it protects the mental labor in its material product." 79 It is in the transmission of this mental labor that Thomas finds the difference between photography and the traditional fine arts, in which "it is always the intelligence of man expressing what his intelligence has conceived, guiding his brush or his graver, and contending with them against material difficulties." 80

But how, again, is the author's "personality" suddenly found in the work? Thomas's answer is that if the painter's intellect "directed his hand," then that individual irreducible "something" may be seen as organically flowing through the body and directing the conformation of the material object or the vehicles of expression to the shape of his conception. But the personality cannot flow from the subject through the photographic apparatus. The apparatus must be circumvented. If it is not, the authorial credit is voided. Since personality cannot mix and mingle or flow through the machine in any way, it must make its mark without touching. Although the "imprint of personality" is never actually found in the work, it is everywhere else -- in choice, technique, artistic practice, and, as we will see, in the life and personal style of the artist-subject.

For Thomas, after the apparatus is set up the photographer "remains a complete stranger" to the process, because, says Thomas, "light does its work; a splendid but independent agent has accomplished all." 81 And in support of this position the acting Imperial Advocate summarizes the decision of an 1864 tribunal, which found that "although the talent of the operator may contribute much to the success of the portraits or views which are desired, it is none the less certain that these products or views are mechanically made, by the action of light upon certain chemicals, and, in this operation, genius can have no effect on the result obtained." 82 As this decision suggests, the reticence of the French courts to understand the photographer as authoring the image may in part be explained by the competing claim for the authorship of nature, enhanced by European discourses on photography that stressed the agency of light. The version of photography as light-drawing, as the creation of nature, after all, reigned for at least twenty-five years after Louis-Jacques-Mandé Daguerre's 1839 discovery. Daguerre's perfected photographic process, as Beaumont Newhall describes it, answered the yearning for a pure image of the world produced by the "pencil of nature," an image that would be superior to the "intrusion of the pencil of man." 83 Typical of the period is one reviewer's comment on William Henry Fox Talbot The Pencil of Nature ( 1844), which praised the way the photographic plates reproduced in the book seemed "an effect of sunshine, and the microscopic execution sets at nought the work of human hands." 84 Or again, Joseph-Nicéphore Niépce, who later collaborated with Daguerre, named his earliest successful experiment heliography (sun-writing). As the title of his instructional manual attests, the human author-subject was written out of the earliest descriptions of the technology: On Heliography; or, A Means of Automatically Fixing, by the Action of Light, the Image Formed in the Camera Obscura. 85

These two features of photography -- the work of natural light and the automatic functioning of the device -- were to be reiterated often in the French legal discourse as they were in the formative stages of the technology. This version of how photography worked was reinforced in the published statements of the inventors. By Daguerre's account, the two most remarkable features of his invention were that "anyone can take the most detailed views in a few minutes" and that the daguerreotype was "a chemical and physical process which gives Nature the ability to reproduce herself." 86 But if the image were produced sheerly by the magnanimity of nature, then no requisite exclusivity could be asserted and no fortunes could be made. During the short period in French history when the unique and delicate image on tin was thought to be indifferent to the camera operator and a humanly uncontaminated product of the sun, Daguerre sold his invention to the government. 87 The means for reproducing the works of nature would belong to the French people.

Sarony's Artistry

If the photographer wanted to claim authorship in the work, he could not allow either that "anyone can take the most detailed views in a few minutes" or that the image was nature's miraculous self-reproduction. Both the claim of the machine and the claim of nature were easily dismissed. So for the latter, by the time the apparatus made "anyone and everyone" into photographers, the issue of authorship in the photo had been settled. Between photography's formative years and January 1882, when the Wilde photograph was taken, the emergence of the photographic portraitist altered the popular conception of photographic technique, so much so that by the time Sarony argued for his authorial right, he had a ready-made rationale based on an extremely lucrative trade already flourishing in Paris, London, and New York. In addition, the visual conventions and the institutional practices of portrait photography were thoroughly indebted to traditions of full-length portrait painting -- a connection reinforced by the elaborate parlorlike decor of the studios, the ritual of the sitting, and the eccentric theatrics of the photographer. These conventions and practices camouflaged the instantaneity, the effortlessness, of photographic production, but, most of all, they denied photography's multiplicity and reproducibility. As we will see, the history of photography in the nineteenth century reveals an inverse relationship between the mechanical and chemical improvements that increased the speed and ease of image reproduction and the claims made in the name of uniqueness.

The discourse on portrait photography that Sarony inherited originally centered mainly on the pose and the iconography, although sometimes the photographer is credited with using mirrors to manipulate the existing light, which, before the introduction of electric lights, flowed in from the studio skylight. 88 Borrowing the terminology of fine art criticism that photographic portraiture inherited from painting, Justice Miller agreed that Sarony was responsible for "arranging and disposing the light and shade." But curiously absent from Sarony's argument and from the discourse on photography is the labor that actually most resembled that of the painter: retouching, retracing, coloring, and, as advocated by the Pictorialists, printing and rephotographing. Equally strange is the absence of reference to chemical processes, especially given the importance in this period of the advances of the collodian process over the older wetplate process, and since the new process was having its impact upon photographer and patron alike. But the chemical processes remain the most mysterious aspects of photography in both U.S. and French legal doctrine, in part because they seemed to remain independent of the human hand, a part of nature that could not be absorbed into the process of "conception."

"Conception" was taken out of the recesses of the head and made concretely visible in the personal style and the studio manner of the photographer, who modeled himself after the artist-genius. In fact, Sarony's version of how his personal conception found form in the image resembles nothing so much as the familiar accounts of how the old masters worked with their assistants, whose work was subsumed by the great artist's conception because they "knew" what he wanted. As Sarony described how he relayed ideas to his camera operator: "If I make a position, and his camera is right, my longtime assistant here, Richardson, is able to catch my ideas as deftly and quickly as necessary." 89 If the requisite authorial "personality" could not be detected in the work itself, it could nevertheless be inferred through artistic choice and practical technique.

But especially in cases like Sarony's, the inference of personality in the work was made on and through the body of the artist himself. Napoleon Sarony, whose physical stature was similar to that of his famous namesake, cultivated a volatile temperament and a flamboyant personal style that was epitomized in the red fez he always wore and in the bold red embossed signature on his work. And Sarony's mystique was only enhanced by reports about the posing session. Crucial to the mystique of the photographer as author was the artist-patron relationship, which made up in intensity for what it lacked, compared with the painted portrait, in duration. The pioneer in this tradition of photographic portraiture was Gaspard-Felix Tournachon ("Nadar"). Nadar admitted that the techniques of photography could be easily learned, but he ascribed the superiority of his method to his artistic sensibility, which could be seen in his lighting effects but especially in his capacity for empathy. This empathetic sensibility, the "moral grasp of the subject," enabled him to draw out a likeness much as a theatrical director commanded a performance. 90 Thirteen years after Nadar opened his studio in Paris, Sarony situated his own to take advantage of the Broadway trade, and in that location he perfected the theatrics of photography and established the popularity of the theatrical photograph in the U.S. 91

It is important to distinguish between the high art aspirations and the ethereal quality of the French portrait school ( Nadar, Etienne Carjat, Pierre Petit, Anthony Samuel Adam-Solomon), on the one hand, and on the other, the theatrical photography of Sarony's Broadway studio period. Between Nadar's start and Sarony's heyday, the popular potential of portrait photography was fully realized in Adolphe-Eugène Disdéri's carte de visite, which had a short-lived success in France in the years 185460. 92 Sarony's Wilde image, however, was taken as a cabinet photograph and was much larger (5 1/2" by 4") than the tiny carte de visite that it superseded in popularity. 93 "Oscar Wilde, No. 18" is on the verge of presenting the more psychological effect made possible by placing the photographic subject closer to the camera. The cabinet card aesthetic, with its foregrounding of facial expression, was clearly distinguishable from the aesthetic of the carte de visite, whose subject was crowded into the frame stuffed with material possessions. 94 What is significant about the Sarony photographs in particular is that they represent a combination of the aesthetics of the portrait tradition and the wild popularity of the mass-produced carte de visite -- a merger that encouraged and thrived upon the emergence of the star system in the American theater. 95 In fact, what Sarony largely did was to photograph actors in their roles: Joseph Jefferson in Rip Van Winkle, Lillian Russell in Tzigane, James O'Neill in The Count of Monte Cristo, and Lily Langtry in As You Like It.

So it seems that at least two "personalities" mingled their artistry in the photographic work. But how, then, can copyright law deal with two conceptions, two labors of mind and body in the work, when this doctrine is based on a vision of the work as "one man's alone"? Why did the photographer, rather than the celebrity subject, emerge as the creator of the image? There are two broad facets of this question of two artists vying for authorship of the same image: one having to do with authorial power, the other with conventions of representation on the popular stage as they intersect with photographic portraiture. These issues are summarized in an anecdote about Sarony's posing session with the popular melodrama star Adah Isaacs Menken, who came to his studio in Birmingham, England, in 1865. Menken's reputation had been made in her role in the melodrama Mazeppa, largely because of the scandalous nature of the scene in which, costumed in pink tights and brief tunic, she rode across the stage tied to the bare back of a horse. Since 1859 she had been promoting herself with cartes de visite, which were distributed in conjunction with her performances, but she told Sarony that she had never been satisfied with the photographs taken of her in the role of Mazeppa. As Sarony recalled it, he challenged her by suggesting that she pose herself in eight images, after which he would pose her in a different eight. Much to Sarony's satisfaction, the actress was disappointed in the eight poses she had arranged herself, but she liked his arrangements, which portrayed her in stages of recline, languishing on a fur mat. 96

Posing, as Sarony's claim implies, involves placing the subject's body in front of the camera in particular positions, eliciting facial expressions, and directing bodily attitudes. In this relatively abbreviated period before shorter exposure times encouraged the myth of spontaneity and chance in photography, the photographer's work consisted, in no small part, of fixing poses that subjects might have to hold for fifteen to sixty seconds. And in this regard, the eye rest and the posing machine (appui-tête) are emblematic of the way the subject was made malleable. 97 Having one's picture taken meant being told what to think to encourage an expression and where to look while one was held in the invisible grip of the prosthetic device that shaped the body. 98 In the descriptions of the work of portraiture during the period, it is difficult to tell where the body of the subject as material for arrangement leaves off and where the "costume, draperies, and other various accessories" begin -- all of which, in Sarony's argument, are employed to the ends of "evoking representation." But Sarony's artistic practice might better be described as "provoking" a representation in his patrons, since he often threw tantrums and left the room during the photographing session if a subject refused to cooperate with his vision. In Sarony, we see the unsettling implications of the concept of artistic evocation, a concept that suggests there can be no representation unless it is summoned from the subject who, held in the posing machine, yields up an image that is extracted as though it were a confession.

The power relations at work in the posing session suggest a structure of gender relations as well. Certainly the concept of the author as father of the work, which evolved in the Romantic notion of literary genius, could only complement the powers of the new proprietal author emerging at the end of the eighteenth century. Feminist criticism has historically theorized the writer or fine artist as fathering the work by means of the phallic pen or brush and chisel. 99 In contemporary feminist theories of photographic representation, however, the camera is not strictly analogous to the writing or drawing "instrument"; it is instead a dimension of the (male) photographer's instrumental "look," which merges with the camera's view. This controlling and constituting "look," originally theorized as a gendered trajectory, requires a female body as its object. 100 Applying this theory to the power relations involved in photographic sitting, Craig Owens suggests that the photographer's command of the body before the camera produces a power differential: "If, posing for a photograph, I freeze, it is not in order to assist the photographer, it is in some sense to resist him, to protect myself from his immobilizing gaze." 101 But despite the volume of work based on the paradigm of the look in film theory, later applied to still photography, painting, dance, and even literature, little has been done to explain not the controlling eye but the controlling hand. By "controlling hand" I mean the authorial positioning work, the staging and blocking of the theatrical and the motion picture director, and the compositional arrangement of the photographic and fine art portraitist. 102 The gender analysis suggests that there is a relay from eye to hand and from there to the controlling rights in the work.

In the mid- to late nineteenth century, we still find each man entitled to claim the inert matter over which he has exerted his will, in this case the body of the subject before the camera. And in 1882 -- seventeen years after Congress had recognized copyright in the photograph on the analogy with lithography -- we see a strong case emerging for understanding the photographer as more than a servant of his technology. 103 But at least one case was made against the authorial right of the photographer on behalf of the authorial contribution of the subject in the photograph. In this particular case, Benjamin Falk, a New York photographer and Sarony's chief competition, filed suit against Donaldson Lithographic Company for producing a lithograph of the actress Julia Marlowe. Falk argued that the mass-produced lithograph infringed upon his rights to the photograph that he had taken in 1887 of Marlowe in the role of Parthenia in Ingomar, the Barbarian. Although the judge decided in favor of Falk, citing Burrow-Giles as precedent, Donaldson's case, which rested on the defense that the photograph was unprotectable because the photographer was a mechanic, contested the artistry of the photographer by proposing a competing artistry -- that of the actress. Rephrasing the argument as it was put to him, the trial judge summarized: "An examination of the photograph shows that it is the work of an artist. The question is whether the artist was Miss Marlowe, or the complainant. How far the artistic contributions are to be attributed to the talent of Miss Marlowe, it is impossible to say." 104 In weighing the contribution of each artist, the judge read the image itself in an attempt to determine the creative share contributed by each. In answer to the "test" of originality put forward in Burrow-Giles, Donaldson argued that it was "absurd to suppose that the complainant ( Falk) could have suggested to a trained actress like Miss Marlowe either costume, facial expression, or pose." And they went on to offer the testimony of a gas man working at the Bijou Theatre who had seen the actress on stage in the same pose. Further, they argued that the Greek dress was the conventional costume for playing such a part. And finally, the actress's hair was styled in the mode of the day (and therefore could not be seen as the creation of the "photographist"). 105

In support of his decision that Julia Marlowe's pose was the "work" of Falk, the judge argued that the side view represented in the image could only be a pose produced by someone other than Marlowe, who could not have judged on her own how to turn her body or raise her hands "so that the lights and shadows might best reveal the beauties of face and figure." Finally, the judge discovered, in a comparison between two photographs of Marlowe in similar poses, that Falk's interpretation could be detected: "[I]n the one, a pretty woman is standing for her picture; in the other, she has lost her personality in the character she has assumed, as interpreted in the pose chosen by the complainant." 106 The question here is "whose interpretative artistry" is at work? If the photographer emerges here as author with such ease, it may be because of the irony that the personhood of the photographic subject is made invisible by the artistry of the actor who convincingly portrays a character. 107 Later in history, this artistry would have to be reasserted, as I will discuss in later chapters. This uneven relationship between photographer and photographed in the theatrical portrait business before the turn of the century is paralleled by the economic relations that obtained between them. Lithographers and photographers who claimed authorship in their work on the basis of originality and singularity were nevertheless artist and industrial mass producer in one. They sold theatrical photographs wholesale to salesmen who turned around and sold them in theaters and hotels or by mail order. 108 But, most important, photographers such as Falk and Sarony could make fortunes in this business because they retained the copyright in the theatrical portrait long after actors had contractually signed away any rights they might want to claim. Some actors received royalties later, but the most popular personalities (whose images were called "sure cards" in the trade) often had to be paid royalties in advance. A few of the spectacularly famous commanded large payments for sitting, and in effect challenged, in economic terms, the singular authority of the photographer. Actress Lily Langtry, for instance -- to whom Sarony paid $5,000 for exclusive rights to her image -- would not be melded into the photographer's interpretation of her, and she was reputed to have uncooperatively asserted her own vision during sittings. 109

We still need to comprehend the potency of the ideology of authorship, which, after dismissing the challenge posed by a technology that recreated the world, would successfully assert itself over the evidence made visible on the face and surface of the work itself. While the subject-sitter posed the greatest threat to the fatherhood and legal subjecthood of the artist, the power relations between the two could be adjusted in favor of the artist by means of the contract. And in their indifference to similarities between works, both aesthetic theory and intellectual property doctrine have ignored generic or conventional features in favor of differences between works, distinguishing marks that could be attributed to an artistoriginator. By the next century, intellectual property doctrine would become so accustomed to similarity that it would pretend less and less to find distinctions in the work and would be satisfied more and more with the mere fact of origin in the settlement of disputes.

This development should not be surprising, because what the notion of authorship always denies, as Foucault reminds us, is intertextuality, the connections between works. 110 The very concept of authorship overrides the generic and conventional indebtedness that would mark works as the product not so much of individuals as of societies. What the case for authorial copyright in the theatrical portrait must deny is the connection between the photographer's image and theatrical acting styles, the existence of a ready-made character (already invested with meanings), and iconographic conventions (a hybrid mix of high and low art). As in traditional aesthetics, these low origins are denied in the emulation of high art. And in the legal commentary on the Oscar Wilde photograph, the same holds true: Outside allegiances to popular conventions are overruled in favor of commonalities with the style of portrait painting that the photograph emulates.

In the arguments for their authorship of the pose, for instance, photographers Falk and Sarony cannot admit the influence of the traditions of melodramatic acting style, which dictated the fixedness of the actor's body, nor can they acknowledge the theatrical convention of concentrating emotional material in the fixed pose, the better to provide a summary for the audience. And perhaps the characteristic vacant look of the subjects of these photographs (in which we see more eyeball than pupil) may be attributed not only to the bodily rigidity required by the slower camera lenses but also to the tradition of acting as a kind of embodiment in which the physique was puffed up with emotion as a balloon with air. 111 (Hence the hardness and the absolute solidity of these bodies before Sarony's camera.) And perhaps it was the Delsartian method of acting, so popular at the time, that made each pose equal to an entire separate emotion, so that in this hieroglyphic language each stance was eloquent and complete unto itself. 112

Most of all, though, there is in Sarony's work from this period the unmistakable echo of the theatrical poster -- that vehicle for publicizing popular amusement that tended toward the hyperbolic -- its imagery bulging with connotations. In Sarony as well there is a strong tendency toward the broad and the overblown in his more intimate portraits, many of which would have been sold outside theaters as companion pieces to the theatrical poster. In both works, the uses of costume and props (accessories) depend upon the widest knowledge of social types. The circus performer is summarized with the trapeze and the strong man with a leopard skin, the actress playing Lady Teazle in The School for Scandal is more powdered wig than face, the Shakespearean actor sits in a sixteenthcentury chair, the actress in Greek dramas is photographed beside ivyentwined columns, and the poet Wilde holds a leather-bound volume. Typification may speak more loudly than individuation (as it characteristically does in popular forms), and it is no wonder that we see the broad gesture and the emblematic accessory in the photographic portraits of Napoleon Sarony, who in his earlier lithographic work, in fact, helped to define the aesthetic of the theatrical poster in the U.S.! 113

But there was no ready-made discourse of prestige or property attached to Sarony's skill as a showman or his success as a mass producer. For the prestige that went with it, he increasingly identified himself, even as he brought suit against Burrow-Giles, with the Aesthetic Movement in photography. His homage to the full-length portrait in the style of Sir Joshua Reynolds and Thomas Gainsborough was certainly in the spirit of the Pictorialist emulation of the old masters. And in 1870 he was, in fact, compared to Rembrandt:

Discarding those few formal poses so familiar and so oppressive in photographs, he is able to make true and characteristic portraits in positions so various and so free that they rival not only those of the portrait painters, but those in which figures are represented in genre or historical paintings. He is master of light and shade, and produces heads which repeat the startling effects of Rembrandt's etchings with a truthfulness to the facts of nature that Rembrandt in the attainment of his effect sometimes disregarded. 114

The rhetoric of Henry P. Robinson Pictorial Effect in Photograpby ( 1869) was available at the time, and Sarony's work went on to follow the pattern set by those Pictorialists who transcended photography by reworking the mechanically produced image by hand as though it were a drawing or a painting. 115 Although much of Robinson's unusual work was created by exploring the technology -- by rephotographing and reprocessing -- Sarony preferred "photo-painting" -- elaborate hand-coloring and retouching. 116 Two years before he died in 1896, he published the portfolio Sarony's Living Pictures, which was considered superior to his theatrical portraits -- but as much because of the classical subject as his own handpainting technique. 117 Finally, Sarony's own tortured outbursts attest to the degree to which the photographer must have been fatally summoned by the discourses on art circulated by the Pictorialists of his time: Think what I must suffer . . . fancy my despair. All day long I must pose and arrange for those eternal photographs. They will have me. Nobody but me will do; while I burn, I ache, I die, for something that is truly art. All my art in the photograph I value as nothing. I want to make pictures out of myself, to group a thousand shapes that crowd my imagination. This relieves me, the other oppresses me. 118

The courts may have technically settled the question of artistry in the photograph, but the aesthetic debates in both Europe and the U.S. would continue for almost a century, "devious and confused," as Walter Benjamin has described them. 119 In arguing for the analogy between the photograph and the painting, in attempting to establish photography as an art form, early theorists of the photograph made a strategic but predictable error. As Benjamin points out, their position was doomed from the outset, "for they undertook nothing less than to legitimize the photographer before the very tribunal he was in the process of overturning." 120

Sandwich Man for Authors' Rights

More than a century after Burrow-Giles, what strikes us first about the portrait of Oscar Wilde, as I have said, is the cardboard pose he assumes. We now know that the argument for authorship in the image hinged on Sarony's "posing the said Oscar Wilde" as well as his "disposing the light and shade." Such findings led the Supreme Court to conclude that the image of Oscar Wilde was an "original work of art," the product of Sarony's "intellectual invention" in a category in which he could claim exclusive right. But what also strikes us more than a century later is that while "Oscar Wilde" is represented by his photographic image, the photographer is represented by the signature "Sarony" in the lower left-hand corner. What does the one author have to do with the other? Both subjects have by now vacated the image itself as well as the right to it, so why is it, then, that this particular photograph should still stand for ownership in the image? Why is it reproduced on a full page as an illustration accompanying the text of Burrow-Giles in the leading law school casebook on U.S. entertainment litigation? 121 The answer is in the posture, the position, the pose.

It is well known that Oscar Wilde's famed 1882 lecture tour of the U.S. grew out of producer D'Oyly Carte's use of him to promote the New York production of Gilbert and Sullivan Patience. London theatergoers would have known that the Reginald Bunthorne character in the play was a caricature satirizing Whistler and Wilde as representatives of the excesses of the new Aesthetic Movement. But since the debates that inspired the mockery were unfamiliar to Americans, Wilde's tour was devised to supplement their knowledge, if not to pique their interest in cultural diversions imported from Britain by introducing them to Wilde as entertainment in and of himself. The British press may have lampooned D'Oyly Carte's intention to use Wilde as "a sandwich man for 'Patience,' " 122 but one account of the tour suggests that D'Oyly Carte's sponsorship of Wilde helped to reinforce the producer's ownership in the Gilbert and Sullivan property in the absence of American recognition of his copyright. Wilde was positioned to guarantee the originality of the Carte production against the pirated versions that were inevitabilities in New York. 123

But if Wilde's pose was a front for Carte's theatrical copyright, in another way it was a promotion for Sarony's photographic copyright, and in this it functioned as an advertisement for authorship in the work. And it is in this sense that we might say that Wilde was a "sandwich man for authors' rights." Wilde's lecture tour is a remarkable example not only of how elite culture discourses on authorship depend upon the discourses of the popular but also of how the very circulation of elite culture en masse threatens to turn it into its opposite. For as Wilde took the attitudes of elite culture to American town halls and literary societies, he became the subject of parody in the local press, where cartoonists produced the long hair, velvet jacket, knee breeches, silk stockings, and lilies as popular signs of "affectation." At least three popular songs were written about him, and his poems were pirated and sold for ten cents a copy. 124 From the moment he arrived in New York and announced to the customs officer, "I have nothing to declare but my genius," he began to produce signs that could be doubly inflected as either a proclamation of intellectual superiority or a caricature of that proclamation. Wilde encouraged the production of the literary figure as celebrity in his remarks about the requests for autographs and locks of his hair, 125 and his dedication to "assuming a pose" tells us that he constructed himself as a "work." 126 But my main point is that Wilde could not have been thus constructed without the public articulation of the eccentric artist-type that preceded him. The 85,000 unauthorized photographs in circulation actually advanced not only Wilde's cause but also Sarony's in the long run, because they helped to popularize a paradigm: the opposition between the original and its copy. Wilde was the original for the Bunthorne "copy" of himself and for all those popular parodic copies of the artist type. He was also the source of "original" ideas and sayings that no other man or woman could utter without laying himself or herself open to the charge of having copied Wilde. And finally, Oscar Wilde is aligned with the original negative from which thousands of copies were printed -- some of which became the "originals" from which the 85,000 infringing copies were produced.

But that is not all. The existence of a property to be exchanged requires a subject in law. An object is not property unless it is produced by a (creative) subject -- by an author who intervenes in the mechanical-industrial production of the photograph, who "invests" his personality in the real before the camera. Without this "investment," the product of nature and the machine could not be claimed as private property. And although property in the self can be transferred to another party via a contract (so that the facial image may be owned by a second legal entity), the legal subjecthood of the person in the image still stands as a guarantee of personal property right in the abstract. In Edelman's theorization, because both photographer and photographed are in possession of themselves (and can sell their labor power), each can claim property in the image that contains "personality." As Kingdom and Hirst comment on the paradox: "The logic of the right of the photographer over his photograph also sanctions the right of the photographed over his image. In both cases the right derives from the subject being always-already possessor of itself and its attributes." 127 The author-subject in law, in other words, is a position-holder who makes ownership possible. So it is that Oscar Wilde's own subjecthood in the photograph secures Sarony's copyright in the photograph because they both inhabit identical positions as subjects in law.

But in American copyright doctrine, this legal position-holder produces its antithesis: the author-subject is evacuated from his privileged position in relation to his product. The photographic image may be owned by a second, succeeding party by virtue of the property-producing individuality of the first. There is a contradiction lurking in this formula, and we glimpse it in the foreseeable possibility that the creator might sell an "original work" and then try to reclaim it on the basis that it was his personality that made the work protectable in the first place. This hypothetical scenario, in fact, was tested in a 1914 copyright dispute that confirmed ownership over authorship in the photograph in U.S. intellectual property doctrine. In Gross v. Seligman, the photographer-artist Rochlitz posed a nude model sitting in profile with her arms around her knees. He sold the rights to this photograph, which he called "Grace of Youth," and it subsequently became popular. Two years after he took the first photograph, the artist produced a second photo, "Cherry Red," using the same model in a similar pose, but this time she held the stem of a cherry in her mouth. The owner of the "Grace of Youth" copyright sued the publisher of "Cherry Red" for infringing his right, arguing that the second photograph was not a new and original conception, but rather a copy of the first. The appeals court upheld the owner's argument. 128

The court's decision was based on the premise that the photographer did not create a new image but copied one that no longer belonged to him, even though it was originally his own creation. To quote the court, "The identity of the artist and the many close identities of pose, light, and shade, etc., indicates very strongly that the first picture was used to produce the second." 129 The same signs of artistic conception (posing, the arrangement of "light and shade") used in Burrow-Giles to argue for the creativity of the photographic work are used to prove "copying." Here originality is suddenly turned against the originator. The artist's first exercise of individuality (the wedge into the work that makes it possible for the owner to charge the artist with infringement) makes it impossible for the artist either to produce or to reproduce the second original conception. 130

From the point of view of Edelman's theory, then, the "Oscar Wilde" before the camera inhabited a cardboard position: the subject in law. Because his right to property in himself mirrors the photographer's right to property in his product, Oscar Wilde, too, is a place-holder for capital. Now the most difficult question of all: To what degree does this category of legal subjectivity impinge upon other categories of subject construction outside the law? What, for instance, does it have to do with the position constructed for the ideal subject viewer in representation? And what, if anything at all, does this have to do with what has been called the deconstructive turn of the gay sensibility and the transgressive edge of Wilde's fiction as well as his criticism, asserted with even more radical significance in his outrageously unconventional life-as-work than in his "life's work"? Does Wilde's embrace of the "pose" as a way of life and as a critical category suggest a detachability from legal categories as well as from the categories of "masculinity" and "femininity" proposed for us, to us, in representation? 131 Is it possible that we may be more thoroughly inscribed in and through one kind of position than in and through another? That whereas (because of the distanciation of a gay sensibility) one might refuse the culture's proffered positions of sexual difference, one might still be repositioned as a legal subject whose separate self-possession is requisite to the functioning of not only the legal system but the capitalist state itself? Aesthetic and legal discourses meet again and again in the photograph at different historical junctures. Do they confirm or undo one another? At the same time that the photographic portrait appears as the fundamental confirmation of self-possession (the proud banner and badge of property in the self), do the multiple selves we have via the photographic image destroy the old self-containment of the (humanist) self we thought we had?

Jean-Luc Nancy: The Ground of the Image

If anything marks the image, it is a deep ambivalence. Denounced assuperficial, illusory, and groundless, images are at the same time attributedwith exorbitant power and assigned a privileged relation to truth. Mistrustedby philosophy, forbidden and embraced by religions, manipulated as "spectacle" and proliferated in the media, images never cease to present their multiple aspects, their paradoxes, their flat but receding spaces.

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John Thomson: Forerunner of Death

During four years of expeditions in the wake of the second Opium War the scottish photographer John Thomson was one of the first one who took photographic portrays of Chinese individuals from street beggars to princes and senior government officials. In the introduction to his 1873 photoalbum “China and Its People” Thomson gives silver-tongued account of his entrepreneurship as a “forerunner of death”: “As the ‘Fan Qui’ or ‘Foreign Devil’ who assumed human shape,... I... frequently enjoyed the reputation of being a dangerous geomancer, and my camera was held to be a dark mysterious instrument, which, combined with my naturally, or supernaturally, intensified eyesight gave me power to see through rocks and mountains, to pierce the very souls of the natives, and to produce marvelous pictures by some black art, which at the same time berefit the individual depicted of so much of the principle of life as to render his death a certainty within a very short period of years.” Thomson did not hide at all his cynical amusement about primitive ignorance, but he “blithely ignores the familiar tradition of Chinese official scroll portraiture” (Marina Warner).

Jonathan Lethem: The Ecstasy of influence

by Jonathan Lethem, first published in Harpers Magazine

»Any text is woven entirely with citations, references, echoes, cultural languages, which cut across it through and through in a vast stereophony. The citations that go to make up a text are anonymous, untraceable, and yet already read; they are quotations without inverted commas. The kernel, the soul—let us go further and say the substance, the bulk, the actual and valuable material of all human utterances—is plagiarism. For substantially all ideas are secondhand, consciously and unconsciously drawn from a million outside sources, and daily used by the garnerer with a pride and satisfaction born of the superstition that he originated them; whereas there is not a rag of originality about them anywhere except the little discoloration they get from his mental and moral caliber and his temperament, and which is revealed in characteristics of phrasing. Old and new make the warp and woof of every moment. There is no thread that is not a twist of these two strands. By necessity, by proclivity, and by delight, we all quote. Neurological study has lately shown that memory, imagination, and consciousness itself is stitched, quilted, pastiched. If we cut-and-paste our selves, might we not forgive it of our artworks?«

All mankind is of one author, and is one volume; when one man dies, one chapter is not torn out of the book, but translated into a better language; and every chapter must be so translated. . . .
—John Donne

LOVE AND THEFT

Consider this tale: a cultivated man of middle age looks back on the story of an amour fou, one beginning when, traveling abroad, he takes a room as a lodger. The moment he sees the daughter of the house, he is lost. She is a preteen, whose charms instantly enslave him. Heedless of her age, he becomes intimate with her. In the end she dies, and the narrator—marked by her forever—remains alone. The name of the girl supplies the title of the story: Lolita.
The author of the story I've described, Heinz von Lichberg, published his tale of Lolita in 1916, forty years before Vladimir Nabokov's novel. Lichberg later became a prominent journalist in the Nazi era, and his youthful works faded from view. Did Nabokov, who remained in Berlin until 1937, adopt Lichberg's tale consciously? Or did the earlier tale exist for Nabokov as a hidden, unacknowledged memory? The history of literature is not without examples of this phenomenon, called cryptomnesia. Another hypothesis is that Nabokov, knowing Lichberg's tale perfectly well, had set himself to that art of quotation that Thomas Mann, himself a master of it, called “higher cribbing.” Literature has always been a crucible in which familiar themes are continually recast. Little of what we admire in Nabokov's Lolita is to be found in its predecessor; the former is in no way deducible from the latter. Still: did Nabokov consciously borrow and quote?

“When you live outside the law, you have to eliminate dishonesty.” The line comes from Don Siegel's 1958 film noir, The Lineup, written by Stirling Silliphant. The film still haunts revival houses, likely thanks to Eli Wallach's blazing portrayal of a sociopathic hit man and to Siegel's long, sturdy auteurist career. Yet what were those words worth—to Siegel, or Silliphant, or their audience—in 1958? And again: what was the line worth when Bob Dylan heard it (presumably in some Greenwich Village repertory cinema), cleaned it up a little, and inserted it into “Absolutely Sweet Marie”? What are they worth now, to the culture at large?

Appropriation has always played a key role in Dylan's music. The songwriter has grabbed not only from a panoply of vintage Hollywood films but from Shakespeare and F. Scott Fitzgerald and Junichi Saga's Confessions of a Yakuza. He also nabbed the title of Eric Lott's study of minstrelsy for his 2001 album Love and Theft. One imagines Dylan liked the general resonance of the title, in which emotional misdemeanors stalk the sweetness of love, as they do so often in Dylan's songs. Lott's title is, of course, itself a riff on Leslie Fiedler's Love and Death in the American Novel, which famously identifies the literary motif of the interdependence of a white man and a dark man, like Huck and Jim or Ishmael and Queequeg—a series of nested references to Dylan's own appropriating, minstrel-boy self. Dylan's art offers a paradox: while it famously urges us not to look back, it also encodes a knowledge of past sources that might otherwise have little home in contemporary culture, like the Civil War poetry of the Confederate bard Henry Timrod, resuscitated in lyrics on Dylan's newest record, Modern Times. Dylan's originality and his appropriations are as one.
The same might be said of all art. I realized this forcefully when one day I went looking for the John Donne passage quoted above. I know the lines, I confess, not from a college course but from the movie version of 84, Charing Cross Road with Anthony Hopkins and Anne Bancroft. I checked out 84, Charing Cross Road from the library in the hope of finding the Donne passage, but it wasn't in the book. It's alluded to in the play that was adapted from the book, but it isn't reprinted. So I rented the movie again, and there was the passage, read in voice-over by Anthony Hopkins but without attribution. Unfortunately, the line was also abridged so that, when I finally turned to the Web, I found myself searching for the line “all mankind is of one volume” instead of “all mankind is of one author, and is one volume.”

My Internet search was initially no more successful than my library search. I had thought that summoning books from the vasty deep was a matter of a few keystrokes, but when I visited the website of the Yale library, I found that most of its books don't yet exist as computer text. As a last-ditch effort I searched the seemingly more obscure phrase “every chapter must be so translated.” The passage I wanted finally came to me, as it turns out, not as part of a scholarly library collection but simply because someone who loves Donne had posted it on his homepage. The lines I sought were from Meditation 17 in Devotions upon Emergent Occasions, which happens to be the most famous thing Donne ever wrote, containing as it does the line “never send to know for whom the bell tolls; it tolls for thee.” My search had led me from a movie to a book to a play to a website and back to a book. Then again, those words may be as famous as they are only because Hemingway lifted them for his book title.
Literature has been in a plundered, fragmentary state for a long time. When I was thirteen I purchased an anthology of Beat writing. Immediately, and to my very great excitement, I discovered one William S. Burroughs, author of something called Naked Lunch, excerpted there in all its coruscating brilliance. Burroughs was then as radical a literary man as the world had to offer. Nothing, in all my experience of literature since, has ever had as strong an effect on my sense of the sheer possibilities of writing. Later, attempting to understand this impact, I discovered that Burroughs had incorporated snippets of other writers' texts into his work, an action I knew my teachers would have called plagiarism. Some of these borrowings had been lifted from American science fiction of the Forties and Fifties, adding a secondary shock of recognition for me. By then I knew that this “cut-up method,” as Burroughs called it, was central to whatever he thought he was doing, and that he quite literally believed it to be akin to magic. When he wrote about his process, the hairs on my neck stood up, so palpable was the excitement. Burroughs was interrogating the universe with scissors and a paste pot, and the least imitative of authors was no plagiarist at all.

CONTAMINATION ANXIETY

In 1941, on his front porch, Muddy Waters recorded a song for the folklorist Alan Lomax. After singing the song, which he told Lomax was entitled “Country Blues,” Waters described how he came to write it. “I made it on about the eighth of October '38,” Waters said. “I was fixin' a puncture on a car. I had been mistreated by a girl. I just felt blue, and the song fell into my mind and it come to me just like that and I started singing.” Then Lomax, who knew of the Robert Johnson recording called “Walkin' Blues,” asked Waters if there were any other songs that used the same tune. “There's been some blues played like that,” Waters replied. “This song comes from the cotton field and a boy once put a record out—Robert Johnson. He put it out as named ‘Walkin' Blues.' I heard the tune before I heard it on the record. I learned it from Son House.” In nearly one breath, Waters offers five accounts: his own active authorship: he “made it” on a specific date. Then the “passive” explanation: “it come to me just like that.” After Lomax raises the question of influence, Waters, without shame, misgivings, or trepidation, says that he heard a version by Johnson, but that his mentor, Son House, taught it to him. In the middle of that complex genealogy, Waters declares that “this song comes from the cotton field.”
Blues and jazz musicians have long been enabled by a kind of “open source” culture, in which pre-existing melodic fragments and larger musical frameworks are freely reworked. Technology has only multiplied the possibilities; musicians have gained the power to duplicate sounds literally rather than simply approximate them through allusion. In Seventies Jamaica, King Tubby and Lee “Scratch” Perry deconstructed recorded music, using astonishingly primitive pre-digital hardware, creating what they called “versions.” The recombinant nature of their means of production quickly spread to DJs in New York and London. Today an endless, gloriously impure, and fundamentally social process generates countless hours of music.

Visual, sound, and text collage—which for many centuries were relatively fugitive traditions (a cento here, a folk pastiche there)—became explosively central to a series of movements in the twentieth century: futurism, cubism, Dada, musique concrète, situationism, pop art, and appropriationism. In fact, collage, the common denominator in that list, might be called the art form of the twentieth century, never mind the twenty-first. But forget, for the moment, chronologies, schools, or even centuries. As examples accumulate—Igor Stravinsky's music and Daniel Johnston's, Francis Bacon's paintings and Henry Darger's, the novels of the Oulipo group and of Hannah Crafts (the author who pillaged Dickens's Bleak House to write The Bondwoman's Narrative), as well as cherished texts that become troubling to their admirers after the discovery of their “plagiarized” elements, like Richard Condon's novels or Martin Luther King Jr.'s sermons—it becomes apparent that appropriation, mimicry, quotation, allusion, and sublimated collaboration consist of a kind of sine qua non of the creative act, cutting across all forms and genres in the realm of cultural production.

In a courtroom scene from The Simpsons that has since entered into the television canon, an argument over the ownership of the animated characters Itchy and Scratchy rapidly escalates into an existential debate on the very nature of cartoons. “Animation is built on plagiarism!” declares the show's hot-tempered cartoon-producer-within-a-cartoon, Roger Meyers Jr. “You take away our right to steal ideas, where are they going to come from?” If nostalgic cartoonists had never borrowed from Fritz the Cat, there would be no Ren & Stimpy Show; without the Rankin/Bass and Charlie Brown Christmas specials, there would be no South Park; and without The Flintstones—more or less The Honeymooners in cartoon loincloths—The Simpsons would cease to exist. If those don't strike you as essential losses, then consider the remarkable series of “plagiarisms” that links Ovid's “Pyramus and Thisbe” with Shakespeare's Romeo and Juliet and Leonard Bernstein's West Side Story, or Shakespeare's description of Cleopatra, copied nearly verbatim from Plutarch's life of Mark Antony and also later nicked by T. S. Eliot for The Waste Land. If these are examples of plagiarism, then we want more plagiarism.

Most artists are brought to their vocation when their own nascent gifts are awakened by the work of a master. That is to say, most artists are converted to art by art itself. Finding one's voice isn't just an emptying and purifying oneself of the words of others but an adopting and embracing of filiations, communities, and discourses. Inspiration could be called inhaling the memory of an act never experienced. Invention, it must be humbly admitted, does not consist in creating out of void but out of chaos. Any artist knows these truths, no matter how deeply he or she submerges that knowing.

What happens when an allusion goes unrecognized? A closer look at The Waste Land may help make this point. The body of Eliot's poem is a vertiginous mélange of quotation, allusion, and “original” writing. When Eliot alludes to Edmund Spenser's “Prothalamion” with the line “Sweet Thames, run softly, till I end my song,” what of readers to whom the poem, never one of Spenser's most popular, is unfamiliar? (Indeed, the Spenser is now known largely because of Eliot's use of it.) Two responses are possible: grant the line to Eliot, or later discover the source and understand the line as plagiarism. Eliot evidenced no small anxiety about these matters; the notes he so carefully added to The Waste Land can be read as a symptom of modernism's contamination anxiety. Taken from this angle, what exactly is postmodernism, except modernism without the anxiety?

SURROUNDED BY SIGNS

The surrealists believed that objects in the world possess a certain but unspecifiable intensity that had been dulled by everyday use and utility. They meant to reanimate this dormant intensity, to bring their minds once again into close contact with the matter that made up their world. André Breton's maxim “Beautiful as the chance encounter of a sewing machine and an umbrella on an operating table” is an expression of the belief that simply placing objects in an unexpected context reinvigorates their mysterious qualities.

This “crisis” the surrealists identified was being simultaneously diagnosed by others. Martin Heidegger held that the essence of modernity was found in a certain technological orientation he called “enframing.” This tendency encourages us to see the objects in our world only in terms of how they can serve us or be used by us. The task he identified was to find ways to resituate ourselves vis-à-vis these “objects,” so that we may see them as “things” pulled into relief against the ground of their functionality. Heidegger believed that art had the great potential to reveal the “thingness” of objects.

The surrealists understood that photography and cinema could carry out this reanimating process automatically; the process of framing objects in a lens was often enough to create the charge they sought. Describing the effect, Walter Benjamin drew a comparison between the photographic apparatus and Freud's psychoanalytic methods. Just as Freud's theories “isolated and made analyzable things which had heretofore floated along unnoticed in the broad stream of perception,” the photographic apparatus focuses on “hidden details of familiar objects,” revealing “entirely new structural formations of the subject.”
It's worth noting, then, that early in the history of photography a series of judicial decisions could well have changed the course of that art: courts were asked whether the photographer, amateur or professional, required permission before he could capture and print an image. Was the photographer stealing from the person or building whose photograph he shot, pirating something of private and certifiable value? Those early decisions went in favor of the pirates. Just as Walt Disney could take inspiration from Buster Keaton's Steamboat Bill, Jr., the Brothers Grimm, or the existence of real mice, the photographer should be free to capture an image without compensating the source. The world that meets our eye through the lens of a camera was judged to be, with minor exceptions, a sort of public commons, where a cat may look at a king.

Novelists may glance at the stuff of the world too, but we sometimes get called to task for it. For those whose ganglia were formed pre-TV, the mimetic deployment of pop-culture icons seems at best an annoying tic and at worst a dangerous vapidity that compromises fiction's seriousness by dating it out of the Platonic Always, where it ought to reside. In a graduate workshop I briefly passed through, a certain gray eminence tried to convince us that a literary story should always eschew “any feature which serves to date it” because “serious fiction must be Timeless.” When we protested that, in his own well-known work, characters moved about electrically lit rooms, drove cars, and spoke not Anglo-Saxon but postwar English—and further, that fiction he'd himself ratified as great, such as Dickens, was liberally strewn with innately topical, commercial, and timebound references—he impatiently amended his proscription to those explicit references that would date a story in the “frivolous Now.” When pressed, he said of course he meant the “trendy mass-popular-media” reference. Here, transgenerational discourse broke down.

I was born in 1964; I grew up watching Captain Kangaroo, moon landings, zillions of TV ads, the Banana Splits, M*A*S*H, and The Mary Tyler Moore Show. I was born with words in my mouth—“Band-Aid,” “Q-tip,” “Xerox”—object-names as fixed and eternal in my logosphere as “taxicab” and “toothbrush.” The world is a home littered with pop-culture products and their emblems. I also came of age swamped by parodies that stood for originals yet mysterious to me—I knew Monkees before Beatles, Belmondo before Bogart, and “remember” the movie Summer of '42 from a Mad magazine satire, though I've still never seen the film itself. I'm not alone in having been born backward into an incoherent realm of texts, products, and images, the commercial and cultural environment with which we've both supplemented and blotted out our natural world. I can no more claim it as “mine” than the sidewalks and forests of the world, yet I do dwell in it, and for me to stand a chance as either artist or citizen, I'd probably better be permitted to name it.

Consider Walker Percy's The Moviegoer:
Other people, so I have read, treasure memorable moments in their lives: the time one climbed the Parthenon at sunrise, the summer night one met a lonely girl in Central Park and achieved with her a sweet and natural relationship, as they say in books. I too once met a girl in Central Park, but it is not much to remember. What I remember is the time John Wayne killed three men with a carbine as he was falling to the dusty street in Stagecoach, and the time the kitten found Orson Welles in the doorway in The Third Man.

Today, when we can eat Tex-Mex with chopsticks while listening to reggae and watching a YouTube rebroadcast of the Berlin Wall's fall—i.e., when damn near everything presents itself as familiar—it's not a surprise that some of today's most ambitious art is going about trying to make the familiar strange. In so doing, in reimagining what human life might truly be like over there across the chasms of illusion, mediation, demographics, marketing, imago, and appearance, artists are paradoxically trying to restore what's taken for “real” to three whole dimensions, to reconstruct a univocally round world out of disparate streams of flat sights.

Whatever charge of tastelessness or trademark violation may be attached to the artistic appropriation of the media environment in which we swim, the alternative—to flinch, or tiptoe away into some ivory tower of irrelevance—is far worse. We're surrounded by signs; our imperative is to ignore none of them.

USEMONOPOLY

The idea that culture can be property—intellectual property—is used to justify everything from attempts to force the Girl Scouts to pay royalties for singing songs around campfires to the infringement suit brought by the estate of Margaret Mitchell against the publishers of Alice Randall's The Wind Done Gone. Corporations like Celera Genomics have filed for patents for human genes, while the Recording Industry Association of America has sued music downloaders for copyright infringement, reaching out-of-court settlements for thousands of dollars with defendants as young as twelve. ASCAP bleeds fees from shop owners who play background music in their stores; students and scholars are shamed from placing texts facedown on photocopy machines. At the same time, copyright is revered by most established writers and artists as a birthright and bulwark, the source of nurture for their infinitely fragile practices in a rapacious world. Plagiarism and piracy, after all, are the monsters we working artists are taught to dread, as they roam the woods surrounding our tiny preserves of regard and remuneration.

A time is marked not so much by ideas that are argued about as by ideas that are taken for granted. The character of an era hangs upon what needs no defense. In this regard, few of us question the contemporary construction of copyright. It is taken as a law, both in the sense of a universally recognizable moral absolute, like the law against murder, and as naturally inherent in our world, like the law of gravity. In fact, it is neither. Rather, copyright is an ongoing social negotiation, tenuously forged, endlessly revised, and imperfect in its every incarnation.

Thomas Jefferson, for one, considered copyright a necessary evil: he favored providing just enough incentive to create, nothing more, and thereafter allowing ideas to flow freely, as nature intended. His conception of copyright was enshrined in the Constitution, which gives Congress the authority to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This was a balancing act between creators and society as a whole; second comers might do a much better job than the originator with the original idea.

But Jefferson's vision has not fared well, has in fact been steadily eroded by those who view the culture as a market in which everything of value should be owned by someone or other. The distinctive feature of modern American copyright law is its almost limitless bloating—its expansion in both scope and duration. With no registration requirement, every creative act in a tangible medium is now subject to copyright protection: your email to your child or your child's finger painting, both are automatically protected. The first Congress to grant copyright gave authors an initial term of fourteen years, which could be renewed for another fourteen if the author still lived. The current term is the life of the author plus seventy years. It's only a slight exaggeration to say that each time Mickey Mouse is about to fall into the public domain, the mouse's copyright term is extended.

Even as the law becomes more restrictive, technology is exposing those restrictions as bizarre and arbitrary. When old laws fixed on reproduction as the compensable (or actionable) unit, it wasn't because there was anything fundamentally invasive of an author's rights in the making of a copy. Rather it was because copies were once easy to find and count, so they made a useful benchmark for deciding when an owner's rights had been invaded. In the contemporary world, though, the act of “copying” is in no meaningful sense equivalent to an infringement—we make a copy every time we accept an emailed text, or send or forward one—and is impossible anymore to regulate or even describe.

At the movies, my entertainment is sometimes lately preceded by a dire trailer, produced by the lobbying group called the Motion Picture Association of America, in which the purchasing of a bootleg copy of a Hollywood film is compared to the theft of a car or a handbag—and, as the bullying supertitles remind us, “You wouldn't steal a handbag!” This conflation forms an incitement to quit thinking. If I were to tell you that pirating DVDs or downloading music is in no way different from loaning a friend a book, my own arguments would be as ethically bankrupt as the MPAA's. The truth lies somewhere in the vast gray area between these two overstated positions. For a car or a handbag, once stolen, no longer is available to its owner, while the appropriation of an article of “intellectual property” leaves the original untouched. As Jefferson wrote, “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.”
Yet industries of cultural capital, who profit not from creating but from distributing, see the sale of culture as a zero-sum game. The piano-roll publishers fear the record companies, who fear the cassette-tape manufacturers, who fear the online vendors, who fear whoever else is next in line to profit most quickly from the intangible and infinitely reproducible fruits of an artist's labor. It has been the same in every industry and with every technological innovation. Jack Valenti, speaking for the MPAA: “I say to you that the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.”

Thinking clearly sometimes requires unbraiding our language. The word “copyright” may eventually seem as dubious in its embedded purposes as “family values,” “globalization,” and, sure, “intellectual property.” Copyright is a “right” in no absolute sense; it is a government-granted monopoly on the use of creative results. So let's try calling it that—not a right but a monopoly on use, a “usemonopoly”—and then consider how the rapacious expansion of monopoly rights has always been counter to the public interest, no matter if it is Andrew Carnegie controlling the price of steel or Walt Disney managing the fate of his mouse. Whether the monopolizing beneficiary is a living artist or some artist's heirs or some corporation's shareholders, the loser is the community, including living artists who might make splendid use of a healthy public domain.

THE BEAUTY OF SECOND USE

A few years ago someone brought me a strange gift, purchased at MoMA's downtown design store: a copy of my own first novel, Gun, With Occasional Music, expertly cut into the contours of a pistol. The object was the work of Robert The, an artist whose specialty is the reincarnation of everyday materials. I regard my first book as an old friend, one who never fails to remind me of the spirit with which I entered into this game of art and commerce—that to be allowed to insert the materials of my imagination onto the shelves of bookstores and into the minds of readers (if only a handful) was a wild privilege. I was paid $6,000 for three years of writing, but at the time I'd have happily published the results for nothing. Now my old friend had come home in a new form, one I was unlikely to have imagined for it myself. The gun-book wasn't readable, exactly, but I couldn't take offense at that. The fertile spirit of stray connection this appropriated object conveyed back to me—the strange beauty of its second use—was a reward for being a published writer I could never have fathomed in advance. And the world makes room for both my novel and Robert The's gun-book. There's no need to choose between the two.

In the first life of creative property, if the creator is lucky, the content is sold. After the commercial life has ended, our tradition supports a second life as well. A newspaper is delivered to a doorstep, and the next day wraps fish or builds an archive. Most books fall out of print after one year, yet even within that period they can be sold in used bookstores and stored in libraries, quoted in reviews, parodied in magazines, described in conversations, and plundered for costumes for kids to wear on Halloween. The demarcation between various possible uses is beautifully graded and hard to define, the more so as artifacts distill into and repercuss through the realm of culture into which they've been entered, the more so as they engage the receptive minds for whom they were presumably intended.

Active reading is an impertinent raid on the literary preserve. Readers are like nomads, poaching their way across fields they do not own—artists are no more able to control the imaginations of their audiences than the culture industry is able to control second uses of its artifacts. In the children's classic The Velveteen Rabbit, the old Skin Horse offers the Rabbit a lecture on the practice of textual poaching. The value of a new toy lies not it its material qualities (not “having things that buzz inside you and a stick-out handle”), the Skin Horse explains, but rather in how the toy is used. “Real isn't how you are made. . . . It's a thing that happens to you. When a child loves you for a long, long time, not just to play with, but REALLY loves you, then you become Real.” The Rabbit is fearful, recognizing that consumer goods don't become “real” without being actively reworked: “Does it hurt?” Reassuring him, the Skin Horse says: “It doesn't happen all at once. . . . You become. It takes a long time. . . . Generally, by the time you are Real, most of your hair has been loved off, and your eyes drop out and you get loose in the joints and very shabby.” Seen from the perspective of the toymaker, the Velveteen Rabbit's loose joints and missing eyes represent vandalism, signs of misuse and rough treatment; for others, these are marks of its loving use.

Artists and their surrogates who fall into the trap of seeking recompense for every possible second use end up attacking their own best audience members for the crime of exalting and enshrining their work. The Recording Industry Association of America prosecuting their own record-buying public makes as little sense as the novelists who bristle at autographing used copies of their books for collectors. And artists, or their heirs, who fall into the trap of attacking the collagists and satirists and digital samplers of their work are attacking the next generation of creators for the crime of being influenced, for the crime of responding with the same mixture of intoxication, resentment, lust, and glee that characterizes all artistic successors. By doing so they make the world smaller, betraying what seems to me the primary motivation for participating in the world of culture in the first place: to make the world larger.

SOURCE HYPOCRISY, OR, DISNIAL

The Walt Disney Company has drawn an astonishing catalogue from the work of others: Snow White and the Seven Dwarfs, Fantasia, Pinocchio, Dumbo, Bambi, Song of the South, Cinderella, Alice in Wonderland, Robin Hood, Peter Pan, Lady and the Tramp, Mulan, Sleeping Beauty, The Sword in the Stone, The Jungle Book, and, alas, Treasure Planet, a legacy of cultural sampling that Shakespeare, or De La Soul, could get behind. Yet Disney's protectorate of lobbyists has policed the resulting cache of cultural materials as vigilantly as if it were Fort Knox—threatening legal action, for instance, against the artist Dennis Oppenheim for the use of Disney characters in a sculpture, and prohibiting the scholar Holly Crawford from using any Disney-related images—including artwork by Lichtenstein, Warhol, Oldenburg, and others—in her monograph Attached to the Mouse: Disney and Contemporary Art.

This peculiar and specific act—the enclosure of commonwealth culture for the benefit of a sole or corporate owner—is close kin to what could be called imperial plagiarism, the free use of Third World or “primitive” artworks and styles by more privileged (and better-paid) artists. Think of Picasso's Les Demoiselles d'Avignon, or some of the albums of Paul Simon or David Byrne: even without violating copyright, those creators have sometimes come in for a certain skepticism when the extent of their outsourcing became evident. And, as when Led Zeppelin found themselves sued for back royalties by the bluesman Willie Dixon, the act can occasionally be an expensive one. To live outside the law, you must be honest: perhaps it was this, in part, that spurred David Byrne and Brian Eno to recently launch a “remix” website, where anyone can download easily disassembled versions of two songs from My Life in the Bush of Ghosts, an album reliant on vernacular speech sampled from a host of sources. Perhaps it also explains why Bob Dylan has never refused a request for a sample.

Kenneth Koch once said, “I'm a writer who likes to be influenced.” It was a charming confession, and a rare one. For so many artists, the act of creativity is intended as a Napoleonic imposition of one's uniqueness upon the universe—après moi le déluge of copycats! And for every James Joyce or Woody Guthrie or Martin Luther King Jr., or Walt Disney, who gathered a constellation of voices in his work, there may seem to be some corporation or literary estate eager to stopper the bottle: cultural debts flow in, but they don't flow out. We might call this tendency “source hypocrisy.” Or we could name it after the most pernicious source hypocrites of all time: Disnial.

YOU CAN'T STEAL A GIFT

My reader may, understandably, be on the verge of crying, “Communist!” A large, diverse society cannot survive without property; a large, diverse, and modern society cannot flourish without some form of intellectual property. But it takes little reflection to grasp that there is ample value that the term “property” doesn't capture. And works of art exist simultaneously in two economies, a market economy and a gift economy.

The cardinal difference between gift and commodity exchange is that a gift establishes a feeling-bond between two people, whereas the sale of a commodity leaves no necessary connection. I go into a hardware store, pay the man for a hacksaw blade, and walk out. I may never see him again. The disconnectedness is, in fact, a virtue of the commodity mode. We don't want to be bothered, and if the clerk always wants to chat about the family, I'll shop elsewhere. I just want a hacksaw blade. But a gift makes a connection. There are many examples, the candy or cigarette offered to a stranger who shares a seat on the plane, the few words that indicate goodwill between passengers on the late-night bus. These tokens establish the simplest bonds of social life, but the model they offer may be extended to the most complicated of unions—marriage, parenthood, mentorship. If a value is placed on these (often essentially unequal) exchanges, they degenerate into something else.

Yet one of the more difficult things to comprehend is that the gift economies—like those that sustain open-source software—coexist so naturally with the market. It is precisely this doubleness in art practices that we must identify, ratify, and enshrine in our lives as participants in culture, either as “producers” or “consumers.” Art that matters to us—which moves the heart, or revives the soul, or delights the senses, or offers courage for living, however we choose to describe the experience—is received as a gift is received. Even if we've paid a fee at the door of the museum or concert hall, when we are touched by a work of art something comes to us that has nothing to do with the price. The daily commerce of our lives proceeds at its own constant level, but a gift conveys an uncommodifiable surplus of inspiration.

The way we treat a thing can change its nature, though. Religions often prohibit the sale of sacred objects, the implication being that their sanctity is lost if they are bought and sold. We consider it unacceptable to sell sex, babies, body organs, legal rights, and votes. The idea that something should never be commodified is generally known as inalienability or unalienability—a concept most famously expressed by Thomas Jefferson in the phrase “endowed by their Creator with certain unalienable Rights . . .” A work of art seems to be a hardier breed; it can be sold in the market and still emerge a work of art. But if it is true that in the essential commerce of art a gift is carried by the work from the artist to his audience, if I am right to say that where there is no gift there is no art, then it may be possible to destroy a work of art by converting it into a pure commodity. I don't maintain that art can't be bought and sold, but that the gift portion of the work places a constraint upon our merchandising. This is the reason why even a really beautiful, ingenious, powerful ad (of which there are a lot) can never be any kind of real art: an ad has no status as gift; i.e., it's never really for the person it's directed at.
The power of a gift economy remains difficult for the empiricists of our market culture to understand. In our times, the rhetoric of the market presumes that everything should be and can be appropriately bought, sold, and owned—a tide of alienation lapping daily at the dwindling redoubt of the unalienable. In free-market theory, an intervention to halt propertization is considered “paternalistic,” because it inhibits the free action of the citizen, now reposited as a “potential entrepreneur.” Of course, in the real world, we know that child-rearing, family life, education, socialization, sexuality, political life, and many other basic human activities require insulation from market forces. In fact, paying for many of these things can ruin them. We may be willing to peek at Who Wants to Marry a Multimillionaire or an eBay auction of the ova of fashion models, but only to reassure ourselves that some things are still beneath our standards of dignity.

What's remarkable about gift economies is that they can flourish in the most unlikely places—in run-down neighborhoods, on the Internet, in scientific communities, and among members of Alcoholics Anonymous. A classic example is commercial blood systems, which generally produce blood supplies of lower safety, purity, and potency than volunteer systems. A gift economy may be superior when it comes to maintaining a group's commitment to certain extra-market values.

THE COMMONS

Another way of understanding the presence of gift economies—which dwell like ghosts in the commercial machine—is in the sense of a public commons. A commons, of course, is anything like the streets over which we drive, the skies through which we pilot airplanes, or the public parks or beaches on which we dally. A commons belongs to everyone and no one, and its use is controlled only by common consent. A commons describes resources like the body of ancient music drawn on by composers and folk musicians alike, rather than the commodities, like “Happy Birthday to You,” for which ASCAP, 114 years after it was written, continues to collect a fee. Einstein's theory of relativity is a commons. Writings in the public domain are a commons. Gossip about celebrities is a commons. The silence in a movie theater is a transitory commons, impossibly fragile, treasured by those who crave it, and constructed as a mutual gift by those who compose it.
The world of art and culture is a vast commons, one that is salted through with zones of utter commerce yet remains gloriously immune to any overall commodification. The closest resemblance is to the commons of a language: altered by every contributor, expanded by even the most passive user. That a language is a commons doesn't mean that the community owns it; rather it belongs between people, possessed by no one, not even by society as a whole.
Nearly any commons, though, can be encroached upon, partitioned, enclosed. The American commons include tangible assets such as public forests and minerals, intangible wealth such as copyrights and patents, critical infrastructures such as the Internet and government research, and cultural resources such as the broadcast airwaves and public spaces. They include resources we've paid for as taxpayers and inherited from previous generations. They're not just an inventory of marketable assets; they're social institutions and cultural traditions that define us as Americans and enliven us as human beings. Some invasions of the commons are sanctioned because we can no longer muster a spirited commitment to the public sector. The abuse goes unnoticed because the theft of the commons is seen in glimpses, not in panorama. We may occasionally see a former wetland paved; we may hear about the breakthrough cancer drug that tax dollars helped develop, the rights to which pharmaceutical companies acquired for a song. The larger movement goes too much unremarked. The notion of a commons of cultural materials goes more or less unnamed.

Honoring the commons is not a matter of moral exhortation. It is a practical necessity. We in Western society are going through a period of intensifying belief in private ownership, to the detriment of the public good. We have to remain constantly vigilant to prevent raids by those who would selfishly exploit our common heritage for their private gain. Such raids on our natural resources are not examples of enterprise and initiative. They are attempts to take from all the people just for the benefit of a few.

UNDISCOVERED PUBLIC KNOWLEDGE

Artists and intellectuals despondent over the prospects for originality can take heart from a phenomenon identified about twenty years ago by Don Swanson, a library scientist at the University of Chicago. He called it “undiscovered public knowledge.” Swanson showed that standing problems in medical research may be significantly addressed, perhaps even solved, simply by systematically surveying the scientific literature. Left to its own devices, research tends to become more specialized and abstracted from the real-world problems that motivated it and to which it remains relevant. This suggests that such a problem may be tackled effectively not by commissioning more research but by assuming that most or all of the solution can already be found in various scientific journals, waiting to be assembled by someone willing to read across specialties. Swanson himself did this in the case of Raynaud's syndrome, a disease that causes the fingers of young women to become numb. His finding is especially striking—perhaps even scandalous—because it happened in the ever-expanding biomedical sciences.

Undiscovered public knowledge emboldens us to question the extreme claims to originality made in press releases and publishers' notices: Is an intellectual or creative offering truly novel, or have we just forgotten a worthy precursor? Does solving certain scientific problems really require massive additional funding, or could a computerized search engine, creatively deployed, do the same job more quickly and cheaply? Lastly, does our appetite for creative vitality require the violence and exasperation of another avant-garde, with its wearisome killing-the-father imperatives, or might we be better off ratifying the ecstasy of influence—and deepening our willingness to understand the commonality and timelessness of the methods and motifs available to artists?

GIVE ALL

A few years ago, the Film Society of Lincoln Center announced a retrospective of the works of Dariush Mehrjui, then a fresh enthusiasm of mine. Mehrjui is one of Iran's finest filmmakers, and the only one whose subject was personal relationships among the upper-middle-class intelligentsia. Needless to say, opportunities to view his films were—and remain—rare indeed. I headed uptown for one, an adaptation of J. D. Salinger's Franny and Zooey, titled Pari, only to discover at the door of the Walter Reade Theater that the screening had been canceled: its announcement had brought threat of a lawsuit down on the Film Society. True, these were Salinger's rights under the law. Yet why would he care that some obscure Iranian filmmaker had paid him homage with a meditation on his heroine? Would it have damaged his book or robbed him of some crucial remuneration had the screening been permitted? The fertile spirit of stray connection—one stretching across what is presently seen as the direst of international breaches—had in this case been snuffed out. The cold, undead hand of one of my childhood literary heroes had reached out from its New Hampshire redoubt to arrest my present-day curiosity.

A few assertions, then:
Any text that has infiltrated the common mind to the extent of Gone With the Wind or Lolita or Ulysses inexorably joins the language of culture. A map-turned-to-landscape, it has moved to a place beyond enclosure or control. The authors and their heirs should consider the subsequent parodies, refractions, quotations, and revisions an honor, or at least the price of a rare success.

A corporation that has imposed an inescapable notion—Mickey Mouse, Band-Aid—on the cultural language should pay a similar price.
The primary objective of copyright is not to reward the labor of authors but “to promote the Progress of Science and useful Arts.” To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate.

Contemporary copyright, trademark, and patent law is presently corrupted. The case for perpetual copyright is a denial of the essential gift-aspect of the creative act. Arguments in its favor are as un-American as those for the repeal of the estate tax.

Art is sourced. Apprentices graze in the field of culture.
Digital sampling is an art method like any other, neutral in itself.
Despite hand-wringing at each technological turn—radio, the Internet—the future will be much like the past. Artists will sell some things but also give some things away. Change may be troubling for those who crave less ambiguity, but the life of an artist has never been filled with certainty.

The dream of a perfect systematic remuneration is nonsense. I pay rent with the price my words bring when published in glossy magazines and at the same moment offer them for almost nothing to impoverished literary quarterlies, or speak them for free into the air in a radio interview. So what are they worth? What would they be worth if some future Dylan worked them into a song? Should I care to make such a thing impossible?

Any text is woven entirely with citations, references, echoes, cultural languages, which cut across it through and through in a vast stereophony. The citations that go to make up a text are anonymous, untraceable, and yet already read; they are quotations without inverted commas. The kernel, the soul—let us go further and say the substance, the bulk, the actual and valuable material of all human utterances—is plagiarism. For substantially all ideas are secondhand, consciously and unconsciously drawn from a million outside sources, and daily used by the garnerer with a pride and satisfaction born of the superstition that he originated them; whereas there is not a rag of originality about them anywhere except the little discoloration they get from his mental and moral caliber and his temperament, and which is revealed in characteristics of phrasing. Old and new make the warp and woof of every moment. There is no thread that is not a twist of these two strands. By necessity, by proclivity, and by delight, we all quote. Neurological study has lately shown that memory, imagination, and consciousness itself is stitched, quilted, pastiched. If we cut-and-paste our selves, might we not forgive it of our artworks?

Artists and writers—and our advocates, our guilds and agents—too often subscribe to implicit claims of originality that do injury to these truths. And we too often, as hucksters and bean counters in the tiny enterprises of our selves, act to spite the gift portion of our privileged roles. People live differently who treat a portion of their wealth as a gift. If we devalue and obscure the gift-economy function of our art practices, we turn our works into nothing more than advertisements for themselves. We may console ourselves that our lust for subsidiary rights in virtual perpetuity is some heroic counter to rapacious corporate interests. But the truth is that with artists pulling on one side and corporations pulling on the other, the loser is the collective public imagination from which we were nourished in the first place, and whose existence as the ultimate repository of our offerings makes the work worth doing in the first place.

As a novelist, I'm a cork on the ocean of story, a leaf on a windy day. Pretty soon I'll be blown away. For the moment I'm grateful to be making a living, and so must ask that for a limited time (in the Thomas Jefferson sense) you please respect my small, treasured usemonopolies. Don't pirate my editions; do plunder my visions. The name of the game is Give All. You, reader, are welcome to my stories. They were never mine in the first place, but I gave them to you. If you have the inclination to pick them up, take them with my blessing.

KEY: I IS ANOTHER

This key to the preceding essay names the source of every line I stole, warped, and cobbled together as I “wrote” (except, alas, those sources I forgot along the way). First uses of a given author or speaker are highlighted in red. Nearly every sentence I culled I also revised, at least slightly—for necessities of space, in order to produce a more consistent tone, or simply because I felt like it.

TITLE

The phrase “the ecstasy of influence,” which embeds a rebuking play on Harold Bloom's “anxiety of influence,” is lifted from spoken remarks by Professor Richard Dienst of Rutgers.

LOVE AND THEFT

“. . . a cultivated man of middle age . . .” to “. . . hidden, unacknowledged memory?” These lines, with some adjustments for tone, belong to the anonymous editor or assistant who wrote the dust-flap copy of Michael Maar's The Two Lolitas. Of course, in my own experience, dust-flap copy is often a collaboration between author and editor. Perhaps this was also true for Maar.

“The history of literature . . .” to “. . . borrow and quote?” comes from Maar's book itself.

“Appropriation has always . . .” to “. . . Ishmael and Queequeg . . .” This paragraph makes a hash of remarks from an interview with Eric Lott conducted by David McNair and Jayson Whitehead, and incorporates both interviewers' and interviewee's observations. (The text-interview form can be seen as a commonly accepted form of multivocal writing. Most interviewers prime their subjects with remarks of their own—leading the witness, so to speak—and gently refine their subjects' statements in the final printed transcript.)

“I realized this . . .” to “. . . for a long time.” The anecdote is cribbed, with an elision to avoid appropriating a dead grandmother, from Jonathan Rosen's The Talmud and the Internet. I've never seen 84, Charing Cross Road, nor searched the Web for a Donne quote. For me it was through Rosen to Donne, Hemingway, website, et al.

“When I was thirteen . . .” to “. . . no plagiarist at all.” This is from William Gibson's “God's Little Toys,” in Wired magazine. My own first encounter with William Burroughs, also at age thirteen, was less epiphanic. Having grown up with a painter father who, during family visits to galleries or museums, approvingly noted collage and appropriation techniques in the visual arts (Picasso, Claes Oldenburg, Stuart Davis), I was gratified, but not surprised, to learn that literature could encompass the same methods.

CONTAMINATION ANXIETY

“In 1941, on his front porch . . .” to “. . . ‘this song comes from the cotton field.'” Siva Vaidhyanathan, Copyrights and Copywrongs.

“. . . enabled by a kind . . . freely reworked.” Kembrew McLeod, Freedom of Expression. In Owning Culture, McLeod notes that, as he was writing, he
happened to be listening to a lot of old country music, and in my casual listening I noticed that six country songs shared exactly the same vocal melody, including Hank Thompson's “Wild Side of Life,” the Carter Family's “I'm Thinking Tonight of My Blue Eyes,” Roy Acuff's “Great Speckled Bird,” Kitty Wells's “It Wasn't God Who Made Honky Tonk Angels,” Reno & Smiley's “I'm Using My Bible for a Roadmap,” and Townes Van Zandt's “Heavenly Houseboat Blues.” . . . In his extensively researched book, Country: The Twisted Roots of Rock 'n' Roll, Nick Tosches documents that the melody these songs share is both “ancient and British.” There were no recorded lawsuits stemming from these appropriations. . . .

“. . . musicians have gained . . . through allusion.” Joanna Demers, Steal This Music.

“In Seventies Jamaica . . .” to “. . . hours of music.” Gibson.
“Visual, sound, and text collage . . .” to “. . . realm of cultural production.” This plunders, rewrites, and amplifies paragraphs from McLeod's Owning Culture, except for the line about collage being the art form of the twentieth and twenty-first centuries, which I heard filmmaker Craig Baldwin say, in defense of sampling, in the trailer for a forthcoming documentary, Copyright Criminals.
“In a courtroom scene . . .” to “. . . would cease to exist.” Dave Itzkoff, New York Times.

“. . . the remarkable series of ‘plagiarisms' . . .” to “. . . we want more plagiarism.” Richard Posner, combined from The Becker-Posner Blog and The Atlantic Monthly.

“Most artists are brought . . .” to “. . . by art itself.” These words, and many more to follow, come from Lewis Hyde's The Gift. Above any other book I've here plagiarized, I commend The Gift to your attention.

“Finding one's voice . . . filiations, communities, and discourses.” Semanticist George L. Dillon, quoted in Rebecca Moore Howard's “The New Abolitionism Comes to Plagiarism.”

“Inspiration could be . . . act never experienced.” Ned Rorem, found on several “great quotations” sites on the Internet.

“Invention, it must be humbly admitted . . . out of chaos.” Mary Shelley, from her introduction to Frankenstein.

“What happens . . .” to “. . . contamination anxiety.” Kevin J.H. Dettmar, from “The Illusion of Modernist Allusion and the Politics of Postmodern Plagiarism.”

SURROUNDED BY SIGNS

“The surrealists believed . . .” to the Walter Benjamin quote. Christian Keathley's Cinephilia and History, or the Wind in the Trees, a book that treats fannish fetishism as the secret at the heart of film scholarship. Keathley notes, for instance, Joseph Cornell's surrealist-influenced 1936 film Rose Hobart, which simply records “the way in which Cornell himself watched the 1931 Hollywood potboiler East of Borneo, fascinated and distracted as he was by its B-grade star”—the star, of course, being Rose Hobart herself. This, I suppose, makes Cornell a sort of father to computer-enabled fan-creator reworkings of Hollywood product, like the version of George Lucas's The Phantom Menace from which the noxious Jar Jar Binks character was purged; both incorporate a viewer's subjective preferences into a revision of a filmmaker's work.
“. . . early in the history of photography” to “. . . without compensating the source.” From Free Culture, by Lawrence Lessig, the greatest of public advocates for copyright reform, and the best source if you want to get radicalized in a hurry.

“For those whose ganglia . . .” to “. . . discourse broke down.” From David Foster Wallace's essay “E Unibus Pluram,” reprinted in A Supposedly Fun Thing I'll Never Do Again. I have no idea who Wallace's “gray eminence” is or was. I inserted the example of Dickens into the paragraph; he strikes me as overlooked in the lineage of authors of “brand-name” fiction.

“I was born . . . Mary Tyler Moore Show.” These are the reminiscences of Mark Hosler from Negativland, a collaging musical collective that was sued by U2's record label for their appropriation of “I Still Haven't Found What I'm Looking For.” Although I had to adjust the birth date, Hosler's cultural menu fits me like a glove.

“The world is a home . . . pop-culture products . . .” McLeod.
“Today, when we can eat . . .” to “. . . flat sights.” Wallace.
“We're surrounded by signs, ignore none of them.” This phrase, which I unfortunately rendered somewhat leaden with the word “imperative,” comes from Steve Erickson's novel Our Ecstatic Days.

USEMONOPOLY

“. . . everything from attempts . . .” to “defendants as young as twelve.” Robert Boynton, The New York Times Magazine, “The Tyranny of Copyright?”
“A time is marked . . .” to “. . . what needs no defense.” Lessig, this time from The Future of Ideas.

“Thomas Jefferson, for one . . .” to “‘. . . respective Writings and Discoveries.'” Boynton.

“. . . second comers might do a much better job than the originator
. . .” I found this phrase in Lessig, who is quoting Vaidhyanathan, who himself is characterizing a judgment written by Learned Hand.
“But Jefferson's vision . . . owned by someone or other.” Boynton.
“The distinctive feature . . .” to “. . . term is extended.” Lessig, again from The Future of Ideas.
“When old laws . . .” to “. . . had been invaded.” Jessica Litman, Digital Copyright.
“‘I say to you . . . woman home alone.'” I found the Valenti quote in McLeod. Now fill in the blank: Jack Valenti is to the public domain as ______ is to ________.

THE BEAUTY OF SECOND USE

“In the first . . .” to “. . . builds an archive.” Lessig.
“Most books . . . one year . . .” Lessig.
“Active reading is . . .” to “. . . do not own . . .” This is a mashup of Henry Jenkins, from his Textual Poachers: Television Fans and Participatory Culture, and Michel de Certeau, whom Jenkins quotes.
“In the children's classic . . .” to
“. . . its loving use.” Jenkins. (Incidentally, have the holders of the copyright to The Velveteen Rabbit had a close look at Toy Story? There could be a lawsuit there.)

SOURCE HYPOCRISY, OR, DISNIAL

“The Walt Disney Company . . . alas, Treasure Planet . . .” Lessig.
“Imperial Plagiarism” is the title of an essay by Marilyn Randall.
“. . . spurred David Byrne . . . My Life in the Bush of Ghosts . . .” Chris Dahlen, Pitchfork—though in truth by the time I'd finished, his words were so utterly dissolved within my own that had I been an ordinary cutting-and-pasting journalist it never would have occurred to me to give Dahlen a citation. The effort of preserving another's distinctive phrases as I worked on this essay was sometimes beyond my capacities; this form of plagiarism was oddly hard work.
“Kenneth Koch . . .” to “. . . déluge of copycats!” Emily Nussbaum, The New York Times Book Review.

YOU CAN'T STEAL A GIFT

“You can't steal a gift.” Dizzy Gillespie, defending another player who'd been accused of poaching Charlie Parker's style: “You can't steal a gift. Bird gave the world his music, and if you can hear it you can have it.''
“A large, diverse society . . . intellectual property.” Lessig.
“And works of art . . . ” to “. . .
marriage, parenthood, mentorship.” Hyde.
“Yet one . . . so naturally with the market.” David Bollier, Silent Theft.
“Art that matters . . .” to “. . . bought and sold.” Hyde.
“We consider it unacceptable . . .” to “‘. . . certain unalienable Rights . . .'” Bollier, paraphrasing Margaret Jane Radin's Contested Commodities.
“A work of art . . .” to “. . . constraint upon our merchandising.” Hyde.
“This is the reason . . . person it's directed at.” Wallace.
“The power of a gift . . .” to “. . . certain extra-market values.” Bollier, and also the sociologist Warren O. Hagstrom, whom Bollier is paraphrasing.

THE COMMONS

“Einstein's theory . . .” to “. . . public domain are a commons.” Lessig.
“That a language is a commons . . . society as a whole.” Michael Newton, in the London Review of Books, reviewing a book called Echolalias: On the Forgetting of Language by Daniel Heller-Roazen. The paraphrases of book reviewers are another covert form of collaborative culture; as an avid reader of reviews, I know much about books I've never read. To quote Yann Martel on how he came to be accused of imperial plagiarism in his Booker-winning novel Life of Pi,
Ten or so years ago, I read a review by John Updike in the New York Times Review of Books [sic]. It was of a novel by a Brazilian writer, Moacyr Scliar. I forget the title, and John Updike did worse: he clearly thought the book as a whole was forgettable. His review—one of those that makes you suspicious by being mostly descriptive . . . oozed indifference. But one thing about it struck me: the premise. . . . Oh, the wondrous things I could do with this premise.
Unfortunately, no one was ever able to locate the Updike review in question.
“The American commons . . .” to “. . . for a song.” Bollier.
“Honoring the commons . . .” to “. . . practical necessity.” Bollier.
“We in Western . . . public good.” John Sulston, Nobel Prize‒winner and co-mapper of the human genome.

“We have to remain . . .” to “. . . benefit of a few.” Harry S Truman, at the opening of the Everglades National Park. Although it may seem the height of presumption to rip off a president—I found claiming Truman's stolid advocacy as my own embarrassing in the extreme—I didn't rewrite him at all. As the poet Marianne Moore said, “If a thing had been said in the best way, how can you say it better?” Moore confessed her penchant for incorporating lines from others' work, explaining, “I have not yet been able to outgrow this hybrid method of composition.”

UNDISCOVERED PUBLIC KNOWLEDGE

“. . . intellectuals despondent . . .” to “. . . quickly and cheaply?” Steve Fuller, The Intellectual. There's something of Borges in Fuller's insight here; the notion of a storehouse of knowledge waiting passively to be assembled by future users is suggestive of both “The Library of Babel” and “Kafka and his Precursors.”

GIVE ALL

“. . . one of Iran's finest . . .” to “. . . meditation on his heroine?” Amy Taubin, Village Voice, although it was me who was disappointed at the door of the Walter Reade Theater.
“The primary objective . . .” to “. . . unfair nor unfortunate.” Sandra Day O'Connor, 1991.
“. . . the future will be much like the past” to “. . . give some things away.” Open-source film archivist Rick Prelinger, quoted in McLeod.
“Change may be troubling . . . with certainty.” McLeod.
“. . . woven entirely . . .” to “. . . without inverted commas.” Roland Barthes.
“The kernel, the soul . . .” to “. . . characteristics of phrasing.” Mark Twain, from a consoling letter to Helen Keller, who had suffered distressing accusations of plagiarism (!). In fact, her work included unconsciously memorized phrases; under Keller's particular circumstances, her writing could be understood as a kind of allegory of the “constructed” nature of artistic perception. I found the Twain quote in the aforementioned Copyrights and Copywrongs, by Siva Vaidhyanathan.
“Old and new . . .” to “. . . we all quote.” Ralph Waldo Emerson. These guys all sound alike!

“People live differently . . . wealth as a gift.” Hyde.
“. . . I'm a cork . . .” to “. . . blown away.” This is adapted from The Beach Boys song “'Til I Die,” written by Brian Wilson. My own first adventure with song-lyric permissions came when I tried to have a character in my second novel quote the lyrics “There's a world where I can go and/Tell my secrets to/In my room/In my room.” After learning the likely expense, at my editor's suggestion I replaced those with “You take the high road/I'll take the low road/I'll be in Scotland before you,” a lyric in the public domain. This capitulation always bugged me, and in the subsequent British publication of the same book I restored the Brian Wilson lyric, without permission. Ocean of Story is the title of a collection of Christina Stead's short fiction.
Saul Bellow, writing to a friend who'd taken offense at Bellow's fictional use of certain personal facts, said: “The name of the game is Give All. You are welcome to all my facts. You know them, I give them to you. If you have the strength to pick them up, take them with my blessing.” I couldn't bring myself to retain Bellow's “strength,” which seemed presumptuous in my new context, though it is surely the more elegant phrase. On the other hand, I was pleased to invite the suggestion that the gifts in question may actually be light and easily lifted.

KEY TO THE KEY

The notion of a collage text is, of course, not original to me. Walter Benjamin's incomplete Arcades Project seemingly would have featured extensive interlaced quotations. Other precedents include Graham Rawle's novel Diary of an Amateur Photographer, its text harvested from photography magazines, and Eduardo Paolozzi's collage-novel Kex, cobbled from crime novels and newspaper clippings. Closer to home, my efforts owe a great deal to the recent essays of David Shields, in which diverse quotes are made to closely intertwine and reverberate, and to conversations with editor Sean Howe and archivist Pamela Jackson. Last year David Edelstein, in New York magazine, satirized the Kaavya Viswanathan plagiarism case by creating an almost completely plagiarized column denouncing her actions. Edelstein intended to demonstrate, through ironic example, how bricolage such as his own was ipso facto facile and unworthy. Although Viswanathan's version of “creative copying” was a pitiable one, I differ with Edelstein's conclusions.

The phrase Je est un autre, with its deliberately awkward syntax, belongs to Arthur Rimbaud. It has been translated both as “I is another” and “I is someone else,” as in this excerpt from Rimbaud's letters:
For I is someone else. If brass wakes up a trumpet, it is not its fault. To me this is obvious: I witness the unfolding of my own thought: I watch it, I listen to it: I make a stroke of the bow: the symphony begins to stir in the depths, or springs on to the stage.
If the old fools had not discovered only the false significance of the Ego, we should not now be having to sweep away those millions of skeletons which, since time immemorial, have been piling up the fruits of their one-eyed intellects, and claiming to be, themselves, the authors!

Karl Marx: The Fetishism of Commodities and the Secret Therof

A commodity appears, at first sight, a very trivial thing, and easily understood. Its analysis shows that it is, in reality, a very queer thing, abounding in metaphysical subtleties and theological niceties. So far as it is a value in use, there is nothing mysterious about it, whether we consider it from the point of view that by its properties it is capable of satisfying human wants, or from the point that those properties are the product of human labour. It is as clear as noon-day, that man, by his industry, changes the forms of the materials furnished by Nature, in such a way as to make them useful to him. The form of wood, for instance, is altered, by making a table out of it. Yet, for all that, the table continues to be that common, every-day thing, wood. But, so soon as it steps forth as a commodity, it is changed into something transcendent. It not only stands with its feet on the ground, but, in relation to all other commodities, it stands on its head, and evolves out of its wooden brain grotesque ideas, far more wonderful than “table-turning” ever was. [26a]

The mystical character of commodities does not originate, therefore, in their use value. Just as little does it proceed from the nature of the determining factors of value. For, in the first place, however varied the useful kinds of labour, or productive activities, may be, it is a physiological fact, that they are functions of the human organism, and that each such function, whatever may be its nature or form, is essentially the expenditure of human brain, nerves, muscles, &c. Secondly, with regard to that which forms the ground-work for the quantitative determination of value, namely, the duration of that expenditure, or the quantity of labour, it is quite clear that there is a palpable difference between its quantity and quality. In all states of society, the labour time that it costs to produce the means of subsistence, must necessarily be an object of interest to mankind, though not of equal interest in different stages of development.[27] And lastly, from the moment that men in any way work for one another, their labour assumes a social form.

Whence, then, arises the enigmatical character of the product of labour, so soon as it assumes the form of commodities? Clearly from this form itself. The equality of all sorts of human labour is expressed objectively by their products all being equally values; the measure of the expenditure of labour power by the duration of that expenditure, takes the form of the quantity of value of the products of labour; and finally the mutual relations of the producers, within which the social character of their labour affirms itself, take the form of a social relation between the products.

A commodity is therefore a mysterious thing, simply because in it the social character of men’s labour appears to them as an objective character stamped upon the product of that labour; because the relation of the producers to the sum total of their own labour is presented to them as a social relation, existing not between themselves, but between the products of their labour. This is the reason why the products of labour become commodities, social things whose qualities are at the same time perceptible and imperceptible by the senses. In the same way the light from an object is perceived by us not as the subjective excitation of our optic nerve, but as the objective form of something outside the eye itself. But, in the act of seeing, there is at all events, an actual passage of light from one thing to another, from the external object to the eye. There is a physical relation between physical things. But it is different with commodities. There, the existence of the things quâ commodities, and the value relation between the products of labour which stamps them as commodities, have absolutely no connection with their physical properties and with the material relations arising therefrom. There it is a definite social relation between men, that assumes, in their eyes, the fantastic form of a relation between things. In order, therefore, to find an analogy, we must have recourse to the mist-enveloped regions of the religious world. In that world the productions of the human brain appear as independent beings endowed with life, and entering into relation both with one another and the human race. So it is in the world of commodities with the products of men’s hands. This I call the Fetishism which attaches itself to the products of labour, so soon as they are produced as commodities, and which is therefore inseparable from the production of commodities.

This Fetishism of commodities has its origin, as the foregoing analysis has already shown, in the peculiar social character of the labour that produces them.

As a general rule, articles of utility become commodities, only because they are products of the labour of private individuals or groups of individuals who carry on their work independently of each other. The sum total of the labour of all these private individuals forms the aggregate labour of society. Since the producers do not come into social contact with each other until they exchange their products, the specific social character of each producer’s labour does not show itself except in the act of exchange. In other words, the labour of the individual asserts itself as a part of the labour of society, only by means of the relations which the act of exchange establishes directly between the products, and indirectly, through them, between the producers. To the latter, therefore, the relations connecting the labour of one individual with that of the rest appear, not as direct social relations between individuals at work, but as what they really are, material relations between persons and social relations between things. It is only by being exchanged that the products of labour acquire, as values, one uniform social status, distinct from their varied forms of existence as objects of utility. This division of a product into a useful thing and a value becomes practically important, only when exchange has acquired such an extension that useful articles are produced for the purpose of being exchanged, and their character as values has therefore to be taken into account, beforehand, during production. From this moment the labour of the individual producer acquires socially a twofold character. On the one hand, it must, as a definite useful kind of labour, satisfy a definite social want, and thus hold its place as part and parcel of the collective labour of all, as a branch of a social division of labour that has sprung up spontaneously. On the other hand, it can satisfy the manifold wants of the individual producer himself, only in so far as the mutual exchangeability of all kinds of useful private labour is an established social fact, and therefore the private useful labour of each producer ranks on an equality with that of all others. The equalisation of the most different kinds of labour can be the result only of an abstraction from their inequalities, or of reducing them to their common denominator, viz. expenditure of human labour power or human labour in the abstract. The twofold social character of the labour of the individual appears to him, when reflected in his brain, only under those forms which are impressed upon that labour in every-day practice by the exchange of products. In this way, the character that his own labour possesses of being socially useful takes the form of the condition, that the product must be not only useful, but useful for others, and the social character that his particular labour has of being the equal of all other particular kinds of labour, takes the form that all the physically different articles that are the products of labour. have one common quality, viz., that of having value.

Hence, when we bring the products of our labour into relation with each other as values, it is not because we see in these articles the material receptacles of homogeneous human labour. Quite the contrary: whenever, by an exchange, we equate as values our different products, by that very act, we also equate, as human labour, the different kinds of labour expended upon them. We are not aware of this, nevertheless we do it.[28] Value, therefore, does not stalk about with a label describing what it is. It is value, rather, that converts every product into a social hieroglyphic. Later on, we try to decipher the hieroglyphic, to get behind the secret of our own social products; for to stamp an object of utility as a value, is just as much a social product as language. The recent scientific discovery, that the products of labour, so far as they are values, are but material expressions of the human labour spent in their production, marks, indeed, an epoch in the history of the development of the human race, but, by no means, dissipates the mist through which the social character of labour appears to us to be an objective character of the products themselves. The fact, that in the particular form of production with which we are dealing, viz., the production of commodities, the specific social character of private labour carried on independently, consists in the equality of every kind of that labour, by virtue of its being human labour, which character, therefore, assumes in the product the form of value – this fact appears to the producers, notwithstanding the discovery above referred to, to be just as real and final, as the fact, that, after the discovery by science of the component gases of air, the atmosphere itself remained unaltered.

What, first of all, practically concerns producers when they make an exchange, is the question, how much of some other product they get for their own? in what proportions the products are exchangeable? When these proportions have, by custom, attained a certain stability, they appear to result from the nature of the products, so that, for instance, one ton of iron and two ounces of gold appear as naturally to be of equal value as a pound of gold and a pound of iron in spite of their different physical and chemical qualities appear to be of equal weight. The character of having value, when once impressed upon products, obtains fixity only by reason of their acting and re-acting upon each other as quantities of value. These quantities vary continually, independently of the will, foresight and action of the producers. To them, their own social action takes the form of the action of objects, which rule the producers instead of being ruled by them. It requires a fully developed production of commodities before, from accumulated experience alone, the scientific conviction springs up, that all the different kinds of private labour, which are carried on independently of each other, and yet as spontaneously developed branches of the social division of labour, are continually being reduced to the quantitative proportions in which society requires them. And why? Because, in the midst of all the accidental and ever fluctuating exchange relations between the products, the labour time socially necessary for their production forcibly asserts itself like an over-riding law of Nature. The law of gravity thus asserts itself when a house falls about our ears.[29] The determination of the magnitude of value by labour time is therefore a secret, hidden under the apparent fluctuations in the relative values of commodities. Its discovery, while removing all appearance of mere accidentality from the determination of the magnitude of the values of products, yet in no way alters the mode in which that determination takes place.

Man’s reflections on the forms of social life, and consequently, also, his scientific analysis of those forms, take a course directly opposite to that of their actual historical development. He begins, post festum, with the results of the process of development ready to hand before him. The characters that stamp products as commodities, and whose establishment is a necessary preliminary to the circulation of commodities, have already acquired the stability of natural, self-understood forms of social life, before man seeks to decipher, not their historical character, for in his eyes they are immutable, but their meaning. Consequently it was the analysis of the prices of commodities that alone led to the determination of the magnitude of value, and it was the common expression of all commodities in money that alone led to the establishment of their characters as values. It is, however, just this ultimate money form of the world of commodities that actually conceals, instead of disclosing, the social character of private labour, and the social relations between the individual producers. When I state that coats or boots stand in a relation to linen, because it is the universal incarnation of abstract human labour, the absurdity of the statement is self-evident. Nevertheless, when the producers of coats and boots compare those articles with linen, or, what is the same thing, with gold or silver, as the universal equivalent, they express the relation between their own private labour and the collective labour of society in the same absurd form.

The categories of bourgeois economy consist of such like forms. They are forms of thought expressing with social validity the conditions and relations of a definite, historically determined mode of production, viz., the production of commodities. The whole mystery of commodities, all the magic and necromancy that surrounds the products of labour as long as they take the form of commodities, vanishes therefore, so soon as we come to other forms of production.

Since Robinson Crusoe’s experiences are a favourite theme with political economists,[30] let us take a look at him on his island. Moderate though he be, yet some few wants he has to satisfy, and must therefore do a little useful work of various sorts, such as making tools and furniture, taming goats, fishing and hunting. Of his prayers and the like we take no account, since they are a source of pleasure to him, and he looks upon them as so much recreation. In spite of the variety of his work, he knows that his labour, whatever its form, is but the activity of one and the same Robinson, and consequently, that it consists of nothing but different modes of human labour. Necessity itself compels him to apportion his time accurately between his different kinds of work. Whether one kind occupies a greater space in his general activity than another, depends on the difficulties, greater or less as the case may be, to be overcome in attaining the useful effect aimed at. This our friend Robinson soon learns by experience, and having rescued a watch, ledger, and pen and ink from the wreck, commences, like a true-born Briton, to keep a set of books. His stock-book contains a list of the objects of utility that belong to him, of the operations necessary for their production; and lastly, of the labour time that definite quantities of those objects have, on an average, cost him. All the relations between Robinson and the objects that form this wealth of his own creation, are here so simple and clear as to be intelligible without exertion, even to Mr. Sedley Taylor. And yet those relations contain all that is essential to the determination of value.

Let us now transport ourselves from Robinson’s island bathed in light to the European middle ages shrouded in darkness. Here, instead of the independent man, we find everyone dependent, serfs and lords, vassals and suzerains, laymen and clergy. Personal dependence here characterises the social relations of production just as much as it does the other spheres of life organised on the basis of that production. But for the very reason that personal dependence forms the ground-work of society, there is no necessity for labour and its products to assume a fantastic form different from their reality. They take the shape, in the transactions of society, of services in kind and payments in kind. Here the particular and natural form of labour, and not, as in a society based on production of commodities, its general abstract form is the immediate social form of labour. Compulsory labour is just as properly measured by time, as commodity-producing labour; but every serf knows that what he expends in the service of his lord, is a definite quantity of his own personal labour power. The tithe to be rendered to the priest is more matter of fact than his blessing. No matter, then, what we may think of the parts played by the different classes of people themselves in this society, the social relations between individuals in the performance of their labour, appear at all events as their own mutual personal relations, and are not disguised under the shape of social relations between the products of labour.

For an example of labour in common or directly associated labour, we have no occasion to go back to that spontaneously developed form which we find on the threshold of the history of all civilised races.[31] We have one close at hand in the patriarchal industries of a peasant family, that produces corn, cattle, yarn, linen, and clothing for home use. These different articles are, as regards the family, so many products of its labour, but as between themselves, they are not commodities. The different kinds of labour, such as tillage, cattle tending, spinning, weaving and making clothes, which result in the various products, are in themselves, and such as they are, direct social functions, because functions of the family, which, just as much as a society based on the production of commodities, possesses a spontaneously developed system of division of labour. The distribution of the work within the family, and the regulation of the labour time of the several members, depend as well upon differences of age and sex as upon natural conditions varying with the seasons. The labour power of each individual, by its very nature, operates in this case merely as a definite portion of the whole labour power of the family, and therefore, the measure of the expenditure of individual labour power by its duration, appears here by its very nature as a social character of their labour.

Let us now picture to ourselves, by way of change, a community of free individuals, carrying on their work with the means of production in common, in which the labour power of all the different individuals is consciously applied as the combined labour power of the community. All the characteristics of Robinson’s labour are here repeated, but with this difference, that they are social, instead of individual. Everything produced by him was exclusively the result of his own personal labour, and therefore simply an object of use for himself. The total product of our community is a social product. One portion serves as fresh means of production and remains social. But another portion is consumed by the members as means of subsistence. A distribution of this portion amongst them is consequently necessary. The mode of this distribution will vary with the productive organisation of the community, and the degree of historical development attained by the producers. We will assume, but merely for the sake of a parallel with the production of commodities, that the share of each individual producer in the means of subsistence is determined by his labour time. Labour time would, in that case, play a double part. Its apportionment in accordance with a definite social plan maintains the proper proportion between the different kinds of work to be done and the various wants of the community. On the other hand, it also serves as a measure of the portion of the common labour borne by each individual, and of his share in the part of the total product destined for individual consumption. The social relations of the individual producers, with regard both to their labour and to its products, are in this case perfectly simple and intelligible, and that with regard not only to production but also to distribution.

The religious world is but the reflex of the real world. And for a society based upon the production of commodities, in which the producers in general enter into social relations with one another by treating their products as commodities and values, whereby they reduce their individual private labour to the standard of homogeneous human labour – for such a society, Christianity with its cultus of abstract man, more especially in its bourgeois developments, Protestantism, Deism, &c., is the most fitting form of religion. In the ancient Asiatic and other ancient modes of production, we find that the conversion of products into commodities, and therefore the conversion of men into producers of commodities, holds a subordinate place, which, however, increases in importance as the primitive communities approach nearer and nearer to their dissolution. Trading nations, properly so called, exist in the ancient world only in its interstices, like the gods of Epicurus in the Intermundia, or like Jews in the pores of Polish society. Those ancient social organisms of production are, as compared with bourgeois society, extremely simple and transparent. But they are founded either on the immature development of man individually, who has not yet severed the umbilical cord that unites him with his fellowmen in a primitive tribal community, or upon direct relations of subjection. They can arise and exist only when the development of the productive power of labour has not risen beyond a low stage, and when, therefore, the social relations within the sphere of material life, between man and man, and between man and Nature, are correspondingly narrow. This narrowness is reflected in the ancient worship of Nature, and in the other elements of the popular religions. The religious reflex of the real world can, in any case, only then finally vanish, when the practical relations of every-day life offer to man none but perfectly intelligible and reasonable relations with regard to his fellowmen and to Nature.

The life-process of society, which is based on the process of material production, does not strip off its mystical veil until it is treated as production by freely associated men, and is consciously regulated by them in accordance with a settled plan. This, however, demands for society a certain material ground-work or set of conditions of existence which in their turn are the spontaneous product of a long and painful process of development.

Political Economy has indeed analysed, however incompletely,[32] value and its magnitude, and has discovered what lies beneath these forms. But it has never once asked the question why labour is represented by the value of its product and labour time by the magnitude of that value.[33] These formulæ, which bear it stamped upon them in unmistakable letters that they belong to a state of society, in which the process of production has the mastery over man, instead of being controlled by him, such formulæ appear to the bourgeois intellect to be as much a self-evident necessity imposed by Nature as productive labour itself. Hence forms of social production that preceded the bourgeois form, are treated by the bourgeoisie in much the same way as the Fathers of the Church treated pre-Christian religions.[34]

To what extent some economists are misled by the Fetishism inherent in commodities, or by the objective appearance of the social characteristics of labour, is shown, amongst other ways, by the dull and tedious quarrel over the part played by Nature in the formation of exchange value. Since exchange value is a definite social manner of expressing the amount of labour bestowed upon an object, Nature has no more to do with it, than it has in fixing the course of exchange.

The mode of production in which the product takes the form of a commodity, or is produced directly for exchange, is the most general and most embryonic form of bourgeois production. It therefore makes its appearance at an early date in history, though not in the same predominating and characteristic manner as now-a-days. Hence its Fetish character is comparatively easy to be seen through. But when we come to more concrete forms, even this appearance of simplicity vanishes. Whence arose the illusions of the monetary system? To it gold and silver, when serving as money, did not represent a social relation between producers, but were natural objects with strange social properties. And modern economy, which looks down with such disdain on the monetary system, does not its superstition come out as clear as noon-day, whenever it treats of capital? How long is it since economy discarded the physiocratic illusion, that rents grow out of the soil and not out of society?

But not to anticipate, we will content ourselves with yet another example relating to the commodity form. Could commodities themselves speak, they would say: Our use value may be a thing that interests men. It is no part of us as objects. What, however, does belong to us as objects, is our value. Our natural intercourse as commodities proves it. In the eyes of each other we are nothing but exchange values. Now listen how those commodities speak through the mouth of the economist.

“Value” – (i.e., exchange value) “is a property of things, riches” – (i.e., use value) “of man. Value, in this sense, necessarily implies exchanges, riches do not.”[35] “Riches” (use value) “are the attribute of men, value is the attribute of commodities. A man or a community is rich, a pearl or a diamond is valuable...” A pearl or a diamond is valuable as a pearl or a diamond.[36]

So far no chemist has ever discovered exchange value either in a pearl or a diamond. The economic discoverers of this chemical element, who by-the-bye lay special claim to critical acumen, find however that the use value of objects belongs to them independently of their material properties, while their value, on the other hand, forms a part of them as objects. What confirms them in this view, is the peculiar circumstance that the use value of objects is realised without exchange, by means of a direct relation between the objects and man, while, on the other hand, their value is realised only by exchange, that is, by means of a social process. Who fails here to call to mind our good friend, Dogberry, who informs neighbour Seacoal, that, “To be a well-favoured man is the gift of fortune; but reading and writing comes by Nature.”[37]
Footnotes

1. Karl Marx, “Zur Kritik der Politischen Oekonomie.” Berlin, 1859, p. 3.

2. “Desire implies want, it is the appetite of the mind, and as natural as hunger to the body... The greatest number (of things) have their value from supplying the wants of the mind.” Nicholas Barbon: “A Discourse Concerning Coining the New Money Lighter. In Answer to Mr. Locke’s Considerations, &c.”, London, 1696, pp. 2, 3.

3. “Things have an intrinsick vertue” (this is Barbon’s special term for value in use) “which in all places have the same vertue; as the loadstone to attract iron” (l.c., p. 6). The property which the magnet possesses of attracting iron, became of use only after by means of that property the polarity of the magnet had been discovered.

4.“The natural worth of anything consists in its fitness to supply the necessities, or serve the conveniencies of human life.” (John Locke, “Some Considerations on the Consequences of the Lowering of Interest, 1691,” in Works Edit. Lond., 1777, Vol. II., p. 28.) In English writers of the 17th century we frequently find “worth” in the sense of value in use, and “value” in the sense of exchange value. This is quite in accordance with the spirit of a language that likes to use a Teutonic word for the actual thing, and a Romance word for its reflexion.

5. In bourgeois societies the economic fictio juris prevails, that every one, as a buyer, possesses an encyclopedic knowledge of commodities.

6. “La valeur consiste dans le rapport d’échange qui se trouve entre telle chose et telle autre entre telle mesure d’une production et telle mesure d’une autre.” [“Value consists in the exchange relation between one thing and another, between a given amount of one product and a given amount of another”] (Le Trosne: “De l’Intérêt Social.” Physiocrates, Ed. Daire. Paris, 1846. p. 889.)

7. “Nothing can have an intrinsick value.” (N. Barbon, t. c., p. 6); or as Butler says – “The value of a thing is just as much as it will bring.”

8. N. Barbon, l.c., p. 53 and 7.

9. “The value of them (the necessaries of life), when they are exchanged the one for another, is regulated by the quantity of labour necessarily required, and commonly taken in producing them.” (“Some Thoughts on the Interest of Money in General, and Particularly in the Publick Funds, &.” Lond., p. 36) This remarkable anonymous work written in the last century, bears no date. It is clear, however, from internal evidence that it appeared in the reign of George II, about 1739 or 1740.

10. “Toutes les productions d’un même genre ne forment proprement qu’une masse, dont le prix se détermine en général et sans égard aux circonstances particulières.” [“Properly speaking, all products of the same kind form a single mass, and their price is determined in general and without regard to particular circumstances”] (Le Trosne, l.c., p. 893.)

11. K. Marx. l.c., p.6.

12.I am inserting the parenthesis because its omission has often given rise to the misunderstanding that every product that is consumed by some one other than its producer is considered in Marx a commodity. [Engels, 4th German Edition]

13.Tutti i fenomeni dell’universo, sieno essi prodotti della mano dell’uomo, ovvero delle universali leggi della fisica, non ci danno idea di attuale creazione, ma unicamente di una modificazione della materia. Accostare e separare sono gli unici elementi che l’ingegno umano ritrova analizzando l’idea della riproduzione: e tanto e riproduzione di valore (value in use, although Verri in this passage of his controversy with the Physiocrats is not himself quite certain of the kind of value he is speaking of) e di ricchezze se la terra, l’aria e l’acqua ne’ campi si trasmutino in grano, come se colla mano dell’uomo il glutine di un insetto si trasmuti in velluto ovvero alcuni pezzetti di metalio si organizzino a formare una ripetizione.” [“All the phenomena of the universe, whether produced by the hand of man or through the universal laws of physics, are not actual new creations, but merely a modification of matter. Joining together and separating are the only elements which the human mind always finds on analysing the concept of reproduction.’ and it is just the same with the reproduction of value” (value in use, although Verri in this passage of his controversy with the Physiocrats is not himself quite certain of the kind of value he is speaking of) “and of wealth, when earth, air and water in the fields are transformed into corn, or when the hand of man transforms the secretions of an insect into silk, or some pieces of metal are arranged to make the mechanism of a watch.”] – Pietro Verri, “Meditazioni sulla Economia Politica” [first printed in 1773] in Custodi’s edition of the Italian Economists, Parte Moderna, t. XV., p. 22.

14. Comp. Hegel, “Philosophie des Rechts.” Berlin, 1840. p. 250.

15.The reader must note that we are not speaking here of the wages or value that the labourer gets for a given labour time, but of the value of the commodity in which that labour time is materialised. Wages is a category that, as yet, has no existence at the present stage of our investigation.

16.In order to prove that labour alone is that all-sufficient and real measure, by which at all times the value of all commodities can be estimated and compared, Adam Smith says, “Equal quantities of labour must at all times and in all places have the same value for the labourer. In his normal state of health, strength, and activity, and with the average degree of skill that he may possess, he must always give up the same portion of his rest his freedom, and his happiness.” (“Wealth of Nations,” b. I. ch. V.) On the one hand Adam Smith here (but not everywhere) confuses the determination of value by means of the quantity of labour expended in the production of commodities, with the determination of the values of commodities by means of the value of labour, and seeks in consequence to prove that equal quantities of labour have always the same value. On the other hand he has a presentiment, that labour, so far as it manifests itself in the value of commodities, counts only as expenditure of labour power, but he treats this expenditure as the mere sacrifice of rest, freedom, and happiness, not as at the same time the normal activity of living beings. But then, he has the modern wage-labourer in his eye. Much more aptly, the anonymous predecessor of Adam Smith, quoted above in Note 1, p. 39 [note 9 etext]. says “one man has employed himself a week in providing this necessary of life ... and he that gives him some other in exchange cannot make a better estimate of what is a proper equivalent, than by computing what cost him just as much labour and time which in effect is no more than exchanging one man’s labour in one thing for a time certain, for another man’s labour in another thing for the same time.” (l.c., p. 39.) [The English language has the advantage of possessing different words for the two aspects of labour here considered. The labour which creates use value, and counts qualitatively, is Work, as distinguished from Labour, that which creates Value and counts quantitatively, is Labour as distinguished from Work - Engels]

17.The few economists, amongst whom is S. Bailey, who have occupied themselves with the analysis of the form of value, have been unable to arrive at any result, first, because they confuse the form of value with value itself; and second, because, under the coarse influence of the practical bourgeois, they exclusively give their attention to the quantitative aspect of the question. “The command of quantity ... constitutes value.” (“Money and its Vicissitudes.” London, 1837, p. 11. By S. Bailey.)

18.The celebrated Franklin, one of the first economists, after Wm. Petty, who saw through the nature of value, says: “Trade in general being nothing else but the exchange of labour for labour, the value of all things is ... most justly measured by labour.” (“The works of B. Franklin, &c.,” edited by Sparks. Boston, 1836, Vol. II., p. 267.) Franklin is unconscious that by estimating the value of everything in labour, he makes abstraction from any difference in the sorts of labour exchanged, and thus reduces them all to equal human labour. But although ignorant of this, yet he says it. He speaks first of “the one labour,” then of “the other labour,” and finally of “labour,” without further qualification, as the substance of the value of everything.

19.In a sort of way, it is with man as with commodities. Since he comes into the world neither with a looking glass in his hand, nor as a Fichtian philosopher, to whom “I am I” is sufficient, man first sees and recognises himself in other men. Peter only establishes his own identity as a man by first comparing himself with Paul as being of like kind. And thereby Paul, just as he stands in his Pauline personality, becomes to Peter the type of the genus homo.

20. Value is here, as occasionally in the preceding pages, used in sense of value determined as to quantity, or of magnitude of value.

21.This incongruity between the magnitude of value and its relative expression has, with customary ingenuity, been exploited by vulgar economists. For example – “Once admit that A falls, because B, with which it is exchanged, rises, while no less labour is bestowed in the meantime on A, and your general principle of value falls to the ground... If he [Ricardo] allowed that when A rises in value relatively to B, B falls in value relatively to A, he cut away the ground on which he rested his grand proposition, that the value of a commodity is ever determined by the labour embodied in it, for if a change in the cost of A alters not only its own value in relation to B, for which it is exchanged, but also the value of B relatively to that of A, though no change has taken place in the quantity of labour to produce B, then not only the doctrine falls to the ground which asserts that the quantity of labour bestowed on an article regulates its value, but also that which affirms the cost of an article to regulate its value’ (J. Broadhurst: “Political Economy,” London, 1842, pp. 11 and 14.) Mr. Broadhurst might just as well say: consider the fractions 10/20, 10/50, 10/100, &c., the number 10 remains unchanged, and yet its proportional magnitude, its magnitude relatively to the numbers 20, 50, 100 &c., continually diminishes. Therefore the great principle that the magnitude of a whole number, such as 10, is “regulated” by the number of times unity is contained in it, falls to the ground. [The author explains in section 4 of this chapter, pp. 80-81, note 2 (note 33 etext), what he understands by “Vulgar Economy.” – Engels]

22. Such expressions of relations in general, called by Hegel reflex categories, form a very curious class. For instance, one man is king only because other men stand in the relation of subjects to him. They, on the contrary, imagine that they are subjects because he is king.

23.F. L. A. Ferrier, sous-inspecteur des douanes, “Du gouvernement considéré dans ses rapports avec le commerce,” Paris, 1805; and Charles Ganilh, “Des Systèmes d’Economie Politique, – 2nd ed., Paris, 1821.

24. In Homer, for instance, the value of an article is expressed in a series of different things II. Vll. 472-475.

25.For this reason, we can speak of the coat value of the linen when its value is expressed in coats, or of its corn value when expressed in corn, and so on. Every such expression tells us, that what appears in the use values, cost, corn, &c., is the value of the linen. “The value of any commodity denoting its relation in exchange, we may speak of it as ... corn value, cloth value, according to the commodity with which it is compared; and hence there are a thousand different kinds of value, as many kinds of value as there are commodities in existence, and all are equally real and equally nominal.” (“A Critical Dissertation on the Nature, Measures and Causes of Value: chiefly in reference to the writings of Mr. Ricardo and his followers.” By the author of “Essays on the Formation, &c., of Opinions.” London, 1825, p. 39.) S. Bailey, the author of this anonymous work, a work which in its day created much stir in England, fancied that, by thus pointing out the various relative expressions of one and the same value, he had proved the impossibility of any determination of the concept of value. However narrow his own views may have been, yet, that he laid his finger on some serious defects in the Ricardian Theory, is proved by the animosity with which he was attacked by Ricardo’s followers. See the Westminster Review for example.

26. It is by no means self-evident that this character of direct and universal exchangeability is, so to speak, a polar one, and as intimately connected with its opposite pole, the absence of direct exchangeability, as the positive pole of the magnet is with its negative counterpart. It may therefore be imagined that all commodities can simultaneously have this character impressed upon them, just as it can be imagined that all Catholics can be popes together. It is, of course, highly desirable in the eyes of the petit bourgeois, for whom the production of commodities is the nec plus ultra of human freedom and individual independence, that the inconveniences resulting from this character of commodities not being directly exchangeable, should be removed. Proudhon’s socialism is a working out of this Philistine Utopia, a form of socialism which, as I have elsewhere shown, does not possess even the merit of originality. Long before his time, the task was attempted with much better success by Gray, Bray, and others. But, for all that, wisdom of this kind flourishes even now in certain circles under the name of “science.” Never has any school played more tricks with the word science, than that of Proudhon, for “wo Begriffe fehlen, Da stellt zur rechten Zeit ein Wort sich ein.” [“Where thoughts are absent, Words are brought in as convenient replacements,” Goethe’s, Faust, See Proudhon’s Philosophy of Poverty]

26a. In the German edition, there is the following footnote here: “One may recall that China and the tables began to dance when the rest of the world appeared to be standing still – pour encourager les autres [to encourage the others].” The deafeat of the 1848-49 revolutions was followed by a period of dismal political reaction in Europe. At that time, spiritualism, especially table-turning, became the rage among the European aristocracy. In 1850-64, China was swept by an anti-feudal liberation movement in the form of a large-scale peasant war, the Taiping Revolt. – Note by editors of MECW.

27. Among the ancient Germans the unit for measuring land was what could be harvested in a day, and was called Tagwerk, Tagwanne (jurnale, or terra jurnalis, or diornalis), Mannsmaad, &c. (See G. L. von Maurer, “Einleitung zur Geschichte der Mark, &c. Verfassung,” Munchen, 1854, p. 129 sq.)

28.When, therefore, Galiani says: Value is a relation between persons – “La Ricchezza e una ragione tra due persone,” – he ought to have added: a relation between persons expressed as a relation between things. (Galiani: Della Moneta, p. 221, V. III. of Custodi’s collection of “Scrittori Classici Italiani di Economia Politica.” Parte Moderna, Milano 1803.)

29.What are we to think of a law that asserts itself only by periodical revolutions? It is just nothing but a law of Nature, founded on the want of knowledge of those whose action is the subject of it.” (Friedrich Engels: “Umrisse zu einer Kritik der Nationalökonomie,” in the “Deutsch-Französische Jahrbücher,” edited by Arnold Ruge and Karl Marx. Paris. 1844.)

30. Even Ricardo has his stories à la Robinson. “He makes the primitive hunter and the primitive fisher straightway, as owners of commodities, exchange fish and game in the proportion in which labour time is incorporated in these exchange values. On this occasion he commits the anachronism of making these men apply to the calculation, so far as their implements have to be taken into account, the annuity tables in current use on the London Exchange in the year 1817. The parallelograms of Mr. Owen appear to be the only form of society, besides the bourgeois form, with which he was acquainted.” (Karl Marx: “Zur Kritik, &c..” pp. 38, 39)

31. “A ridiculous presumption has latterly got abroad that common property in its primitive form is specifically a Slavonian, or even exclusively Russian form. It is the primitive form that we can prove to have existed amongst Romans, Teutons, and Celts, and even to this day we find numerous examples, ruins though they be, in India. A more exhaustive study of Asiatic, and especially of Indian forms of common property, would show how from the different forms of primitive common property, different forms of its dissolution have been developed. Thus, for instance, the various original types of Roman and Teutonic private property are deducible from different forms of Indian common property.” (Karl Marx, “Zur Kritik, &c.,” p. 10.)

32. The insufficiency of Ricardo’s analysis of the magnitude of value, and his analysis is by far the best, will appear from the 3rd and 4th books of this work. As regards value in general, it is the weak point of the classical school of Political Economy that it nowhere expressly and with full consciousness, distinguishes between labour, as it appears in the value of a product, and the same labour, as it appears in the use value of that product. Of course the distinction is practically made, since this school treats labour, at one time under its quantitative aspect, at another under its qualitative aspect. But it has not the least idea, that when the difference between various kinds of labour is treated as purely quantitative, their qualitative unity or equality, and therefore their reduction to abstract human labour, is implied. For instance, Ricardo declares that he agrees with Destutt de Tracy in this proposition: “As it is certain that our physical and moral faculties are alone our original riches, the employment of those faculties, labour of some kind, is our only original treasure, and it is always from this employment that all those things are created which we call riches... It is certain, too, that all those things only represent the labour which has created them, and if they have a value, or even two distinct values, they can only derive them from that (the value) of the labour from which they emanate.” (Ricardo, “The Principles of Pol. Econ.,” 3 Ed. Lond. 1821, p. 334.) We would here only point out, that Ricardo puts his own more profound interpretation upon the words of Destutt. What the latter really says is, that on the one hand all things which constitute wealth represent the labour that creates them, but that on the other hand, they acquire their “two different values” (use value and exchange value) from “the value of labour.” He thus falls into the commonplace error of the vulgar economists, who assume the value of one commodity (in this case labour) in order to determine the values of the rest. But Ricardo reads him as if he had said, that labour (not the value of labour) is embodied both in use value and exchange value. Nevertheless, Ricardo himself pays so little attention to the twofold character of the labour which has a twofold embodiment, that he devotes the whole of his chapter on “Value and Riches, Their Distinctive Properties,” to a laborious examination of the trivialities of a J.B. Say. And at the finish he is quite astonished to find that Destutt on the one hand agrees with him as to labour being the source of value, and on the other hand with J. B. Say as to the notion of value.

33.It is one of the chief failings of classical economy that it has never succeeded, by means of its analysis of commodities, and, in particular, of their value, in discovering that form under which value becomes exchange value. Even Adam Smith and Ricardo, the best representatives of the school, treat the form of value as a thing of no importance, as having no connection with the inherent nature of commodities. The reason for this is not solely because their attention is entirely absorbed in the analysis of the magnitude of value. It lies deeper. The value form of the product of labour is not only the most abstract, but is also the most universal form, taken by the product in bourgeois production and stamps that production as a particular species of social production, and thereby gives it its special historical character. If then we treat this mode of production as one eternally fixed by Nature for every state of society, we necessarily overlook that which is the differentia specifica of the value form, and consequently of the commodity form, and of its further developments, money orm, capital form, &c. We consequently find that economists, who are thoroughly agreed as to labour time being the measure of the magnitude of value, have the most strange and contradictory ideas of money, the perfected form of the general equivalent. This is seen in a striking manner when they treat of banking, where the commonplace definitions of money will no longer hold water. This led to the rise of a restored mercantile system (Ganilh, &c.), which sees in value nothing but a social form, or rather the unsubstantial ghost of that form. Once for all I may here state, that by classical Political Economy, I understand that economy which, since the time of W. Petty, has investigated the real relations of production in bourgeois society in contradistinction to vulgar economy, which deals with appearances only, ruminates without ceasing on the materials long since provided by scientific economy, and there seeks plausible explanations of the most obtrusive phenomena, for bourgeois daily use, but for the rest, confines itself to systematising in a pedantic way, and proclaiming for everlasting truths, the trite ideas held by the self-complacent bourgeoisie with regard to their own world, to them the best of all possible worlds.

34. “Les économistes ont une singulière manière de procéder. Il n’y a pour eux que deux sortes d’institutions, celles de l’art et celles de la nature. Les institutions de la féodalité sont des institutions artificielles celles de la bourgeoisie sont des institutions naturelles. Ils ressemblent en ceci aux théologiens, qui eux aussi établissent deux sortes de religions. Toute religion qui n’est pas la leur, est une invention des hommes tandis que leur propre religion est une émanation de Dieu -Ainsi il y a eu de l’histoire, mais il n’y en a plus.” [“Economists have a singular method of procedure. There are only two kinds of institutions for them, artificial and natural. The institutions of feudalism are artificial institutions, those of the bourgeoisie are natural institutions. In this they resemble the theologians, who likewise establish two kinds of religion. Every religion which is not theirs is an invention of men, while their own is an emanation from God. ... Thus there has been history, but there is no longer any”] (Karl Marx. Misère de la Philosophie. Réponse a la Philosophie de la Misère par M. Proudhon, 1847, p. 113.) Truly comical is M. Bastiat, who imagines that the ancient Greeks and Romans lived by plunder alone. But when people plunder for centuries, there must always be something at hand for them to seize; the objects of plunder must be continually reproduced. It would thus appear that even Greeks and Romans had some process of production, consequently, an economy, which just as much constituted the material basis of their world, as bourgeois economy constitutes that of our modern world. Or perhaps Bastiat means, that a mode of production based on slavery is based on a system of plunder. In that case he treads on dangerous ground. If a giant thinker like Aristotle erred in his appreciation of slave labour, why should a dwarf economist like Bastiat be right in his appreciation of wage labour? I seize this opportunity of shortly answering an objection taken by a German paper in America, to my work, “Zur Kritik der Pol. Oekonomie, 1859.” In the estimation of that paper, my view that each special mode of production and the social relations corresponding to it, in short, that the economic structure of society, is the real basis on which the juridical and political superstructure is raised and to which definite social forms of thought correspond; that the mode of production determines the character of the social, political, and intellectual life generally, all this is very true for our own times, in which material interests preponderate, but not for the middle ages, in which Catholicism, nor for Athens and Rome, where politics, reigned supreme. In the first place it strikes one as an odd thing for any one to suppose that these well-worn phrases about the middle ages and the ancient world are unknown to anyone else. This much, however, is clear, that the middle ages could not live on Catholicism, nor the ancient world on politics. On the contrary, it is the mode in which they gained a livelihood that explains why here politics, and there Catholicism, played the chief part. For the rest, it requires but a slight acquaintance with the history of the Roman republic, for example, to be aware that its secret history is the history of its landed property. On the other hand, Don Quixote long ago paid the penalty for wrongly imagining that knight errantry was compatible with all economic forms of society.

35. “Observations on certain verbal disputes in Pol. Econ., particularly relating to value and to demand and supply” Lond., 1821, p. 16.

36. S. Bailey, l.c., p. 165.

37.The author of “Observations” and S. Bailey accuse Ricardo of converting exchange value from something relative into something absolute. The opposite is the fact. He has explained the apparent relation between objects, such as diamonds and pearls, in which relation they appear as exchange values, and disclosed the true relation hidden behind the appearances, namely, their relation to each other as mere expressions of human labour. If the followers of Ricardo answer Bailey somewhat rudely, and by no means convincingly, the reason is to be sought in this, that they were unable to find in Ricardo’s own works any key to the hidden relations existing between value and its form, exchange value.

Laura Mulvey: The possessive Spectator

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Lawrence Lessig: Mere Copyists

An abstract about early photography and the coming up of amateur photography of Free culture by Lawrence Lessig.

In 1839, Louis Daguerre invented the first practical technology for producing what we would call “photographs. ”Appropriately enough, they were called “daguerreotypes.” The process was complicated and expensive, and the field was thus limited to professionals and a few zealous and wealthy amateurs. (There was even an American Daguerre Association that helped regulate the industry, as do all such associa- tions, by keeping competition down so as to keep prices up.)

Yet despite high prices, the demand for daguerreotypes was strong. This pushed inventors to find simpler and cheaper ways to make “au- tomatic pictures.” William Talbot soon discovered a process for making “negatives.” But because the negatives were glass, and had to be kept wet, the process still remained expensive and cumbersome. In the 1870s, dry plates were developed, making it easier to separate the taking of a picture from its developing. These were still plates of glass, and thus it was still not a process within reach of most amateurs. The technological change that made mass photography possible didn’t happen until 1888, and was the creation of a single man. George Eastman, himself an amateur photographer, was frustrated by the technology of photographs made with plates. In a flash of insight (so to speak), Eastman saw that if the film could be made to be flexible, it could be held on a single spindle. That roll could then be sent to a de- veloper, driving the costs of photography down substantially. By lowering the costs, Eastman expected he could dramatically broaden the population of photographers.

Eastman developed flexible, emulsion-coated paper film and placed rolls of it in small, simple cameras: the Kodak. The device was marketed on the basis of its simplicity. “You press the button and we do the rest.” (1) As he described in The Kodak Primer: The principle of the Kodak system is the separation of the work that any person whomsoever can do in making a photograph, from the work that only an expert can do....We furnish anybody, man, woman or child, who has sufficient intelligence to point a box straight and press a button, with an instrument which altogether removes from the practice of photography the necessity for exceptional facilities or, in fact, any special knowledge of the art. It can be employed without preliminary study, without a darkroom and without chemicals. (2)

For $25,anyone could make pictures. The camera came preloaded with film, and when it had been used, the camera was returned to an Eastman factory,where the film was developed. Over time, of course, the cost of the camera and the ease with which it could be used both improved. Roll film thus became the basis for the explosive growth of popular photography. Eastman’s camera first went on sale in 1888; one year later, Kodak was printing more than six thousand negatives a day. From 1888 through 1909,while industrial production was rising by 4.7 percent, photographic equipment and material sales increased by 11 percent. (3) Eastman Kodak’s sales during the same period experienced an average annual increase of over 17 percent.

The real significance of Eastman’s invention, however, was not economic. It was social. Professional photography gave individuals a glimpse of places they would never otherwise see.Amateur photography gave them the ability to record their own lives in a way they had never been able to do before. As author Brian Coe notes,“For the first time the snapshot album provided the man on the street with a per- manent record of his family and its activities.... For the first time in history there exists an authentic visual record of the appearance and activities of the common man made without [literary] interpretation orbias.” (5)

In this way, the Kodak camera and film were technologies of expression. The pencil or paintbrush was also a technology of expression, of course. But it took years of training before they could be deployed by amateurs in any useful or effective way. With the Kodak, expression was possible much sooner and more simply.The barrier to expression was lowered. Snobs would sneer at its “quality”; professionals would discount it as irrelevant. But watch a child study how best to frame a picture and you get a sense of the experience of creativity that the Kodak enabled. Democratic tools gave ordinary people a way to express themselves more easily than any tools could have before.

What was required for this technology to flourish? Obviously, Eastman’s genius was an important part. But also important was the legal environment within which Eastman’s invention grew. For early in the history of photography,there was a series of judicial decisions that could well have changed the course of photography substantially. Courts were asked whether the photographer, amateur or professional, required permission before he could capture and print whatever image he wanted. Their answer was no. (6)

The arguments in favor of requiring permission will sound surprisingly familiar. The photographer was “taking” something from the person or building whose photograph he shot — pirating something of value. Some even thought he was taking the target’s soul. Just as Disney was not free to take the pencils that his animators used to draw Mickey, so, too, should these photographers not be free to take images that they thought valuable.

On the other side was an argument that should be familiar, as well. Sure, there may be something of value being used. But citizens should have the right to capture at least those images that stand in public view. (Louis Brandeis, who would become a Supreme Court Justice, thought the rule should be different for images from private spaces.7) It may be that this means that the photographer gets something for nothing. Just as Disney could take inspiration from Steamboat Bill,Jr. or the Brothers Grimm, the photographer should be free to capture an image without compensating the source.

Fortunately for Mr.Eastman, and for photography in general, these early decisions went in favor of the pirates. In general, no permission would be required before an image could be captured and shared with others. Instead, permission was presumed. Freedom was the default. (The law would eventually craft an exception for famous people: commercial photographers who snap pictures of famous people for com- mercial purposes have more restrictions than the rest of us. But in the ordinary case,the image can be captured without clearing the rights to do the capturing. 8)

We can only speculate about how photography would have developed had the law gone the other way. If the presumption had been against the photographer, then the photographer would have had to demonstrate permission. Perhaps Eastman Kodak would have had to demonstrate permission,too,before it developed the film upon which images were captured. After all, if permission were not granted, then Eastman Kodak would be benefiting from the “theft” committed by the photographer. Just as Napster benefited from the copyright infringements committed by Napster users, Kodak would be benefiting from the “image-right” infringement of its photographers. We could imagine the law then requiring that some form of permission be demonstrated before a company developed pictures. We could imagine a system developing to demonstrate that permission.

But though we could imagine this system of permission, it would be very hard to see how photography could have flourished as it did if the requirement for permission had been built into the rules that govern it. Photography would have existed. It would have grown in importance over time. Professionals would have continued to use the technology as they did — since professionals could have more easily borne the burdens of the permission system. But the spread of photography to ordinary people would not have occurred. Nothing like that growth would have been realized. And certainly,nothing like that growth in a democratic technology of expression would have been realized.

Marina Warner: Enduring Stratagems of the Imagination

The myth of the soul-theft turns out as a more and more complex series of appropriations and re-appropriations of images that run parallel to colonial land-grab, exploitation and genocide. Marina Warner has identified four stages in which this myth reveals “enduring stratagems of the imagination when the self feels under threat of incomprehension, and their resulting wider cultural expression”: “The idea of soul-theft by image provokes a feeling of shame in those who hold it, however unconsciously, because it is not rational, it is not scientific. So it is ascribed to an Other who is primitive -- noble and doomed; secondly the idea is then borrowed and reiterated, in a kind of false tribute... to the eternal wisdom of those noble, doomed people; thirdly, those same peoples, who have not been altogether successfully exterminated, repossess the idea as an original defining belief of their culture, and in this act of appropriation reassert their authority; fourthly, this repossession then inspires the former colonial annexers to realize that they must take charge of their representations, too.”

Maurizio Lazzarato: Dialogism and Polyphony

Mikhail Bakhtin is one of the most important and most original philosophers of the twentieth century. Due to the Soviet repression that persecuted him from the end of the twenties onwards, his work remains poorly known. Bakhtin is commonly classed as a literary critic and linguist, but, as he himself affirmed: ‘I am a philosopher’. His work has yet to be investigated from this angle. Bakhtin only worked under acceptable conditions between 1919 and 1929. Even during this short period, however, he was not able to publish all that he wished to because of the communist censorship. His collaborators, Medvedev and Volonisov, were murdered in the midst of the Stalinist purges – the first in prison and the second in a camp – whilst Bakhtin himself was spared on the grounds of his chronic illness and sent into exile in Kazakhstan, from 1929 to 1936. We have thus lost, due to the numerous changes in his places of exile, two ‘philosophical’ books of which only a few dozen pages remain. The work of what will later come to be called the Bakhtin ‘circle’ was banned. It was only at the end of the sixties that he was rehabilitated (together with Medvedev and Volonisov) and his writings were once again made available. We can thus say that the Russian revolution crushed this new image of thought which, in my view, was far more faithful to the event of the revolution than the intellectual misery of Leninism and Trotskyism – the only things we inherited from this great upheaval. Bakhtin’s philosophy can still speak to us because it poses the problem of the relationship between life and culture, between life and art, a problem that traversed the entire beginning of the century, and the twenties in particular. The solution given by Bakhtin to this problem is markedly distinct from the solution of the ‘avant-gardes’.

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Maurizio Lazzarato: The Revolutions of Capitalism

THE OTHER AS EXPRESSION OF POSSIBLE WORLDS In his essay “From the revolutions of capitalism” (substance #112) Maurizio Lazzarato notes: As we have seen, there is another tradition in modernity, which conceptualizes the architectonics of the world in terms of what Mikhail Bakhtin defines as the self/other relation. The relation between self and other must be understood neither as a relation between a subject and an object nor as a relation between subjects, but rather as an event-like relation between “possible worlds.” The other is neither an object nor a subject; it is the expression of possible worlds.

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Rosalind Krauss: Tracing Nadar

Though it was written towards the end of his life, Nadar's memoir "My Life as a Photographer", was undertaken at a point when its author's activity in the medium had far from ceased. That is why the title's insistence on pastness (in French it is "Quand j'etais photographe), its declaration of a chapter's having closed, seems somewhat curious. But Nadar's past tense has less to do with his personal fortunes and the trajectory of his own career through time, than with his status as witness. The man born Gaspard-Felix Tournachon, who called himself Nadar, was aware that he had been present at an extraordinary event, and, like the survivor of some natural cataclysm, he felt duty-bound to report on what it had been like, or even more than that, to conjure for his listener the full intensity - emotional, physical, psychological - of that experience. Nadar writes his memoir with the urgency of the eyewitness and the conscience of a historian. Every passage of the text reverberates with this sense of responsibility.

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Simona Josan: The Soul-stealing Camera and Billy Wilder's Sunset Boulevard

The new miracle of photography that swept over the world in the mid-nineteenth century, when the world had for the first time the possibility of gazing at its own image, was only a vague reflection of the wonders of the moving pictures and the celluloid industry soon to come. From the invention of the photographic process, to the stereographic image, and finally to the appearance of motion pictures, people have been mesmerized by this new universe of forms and shapes that seem to have a life of its own, life borrowed or even stolen from the original scene or person.

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Thomas Theye: Der geraubte Schatten

Die Ursachen für das solcherart geäußerte Unbehagen am Fotografieren liegen zumeist in der Konfrontation von verschiedenen Vorstellungen der Seele oder im Verstoß gegen religiöse Vorschriften begründet. Anders als in unserer heutigen, als modern und fortschrittlich empfundenen westlichen Kultur, die Körper und Seele strikt voneinander trennt und, wie in der technizistischen Apparatemedizin auf die Spitze getrieben, den Körper gleichsam nur als Apparat, als Maschine ohne Zusammenhang mit einem belebenden Prinzip ansieht, gab und gibt es immer auch Vorstellungen, die von einer engen Verknüpftheit von Leib und Seele ausgehen. Die uns so geläufige Dualität ist zum Beispiel vielen ‘Naturvölkern’155 fremd. In ihren Vorstellungen werden Beeinträchtigungen des Körpers, Krankheiten und Tod nicht als bloße Funktionsstörungen des Leibes gedeutet, sondern auf Beeinträchtigungen der Seele zurückgeführt.156 Beeinträchtigung meint in diesem Zusammenhang “eine Abwesenheit der Seele”157, oder, daß das “Wesen, dessen Gegenwart das Leben erhalten hat, dem Körper entflohen [...] ist.” 158 (read more: Der geraubte Schatten)